Senator Biden Teaches President Obama A Lesson About NSA Spying From The Past

from the if-only-he'd-listen dept

The folks over at the EFF have put together a nice "debate" video, showing a clip of then-Senator Joe Biden angrily denouncing warrantless wiretapping by the NSA, spliced with President Obama defending the latest NSA surveillance leaks to show a "debate" between the two. I think Biden wins, hands down:

Filed Under: barack obama, joe biden, nsa, nsa surveillance, phone records, warrantless wiretapping

Feds May Have To Reveal FISA Phone Records In Murder Case

from the well-this-interesting dept

There's been a lot of focus elsewhere concerning the FISA rulings that were leaked, showing that the government is scooping up the details of pretty much every phone call. However, a case concerning some guys who were trying to rob an armored truck may lead to some interesting revelations related to what the government collects. Daryl Davis, Hasam Williams, Terrance Brown, Toriano Johnson, and Joseph K. Simmons were charged with trying to rob a bunch of armored Brink's trucks, in which one of the robberies went wrong and a Brink's employee was shot and killed. As part of the case against the group, the DOJ obtained call records. However, during discovery, the government refused to hand over call records for July of 2010, claiming that when they sought them from the telco, the DOJ was told that those records had been purged. Terrance Brown's lawyer is now claiming that since it appears the NSA has sucked up all of this data for quite some time, it would appear that the government should, in fact, already have the phone records from July 2010, which he argues would show that he was nowhere near the robbery when it happened.

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

The court agrees that, under the law, the government may need to produce those records.

Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010.

In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States.

That order was actually issued Monday, only giving the government until yesterday to comply. At the time of posting, the government's reply has not yet shown up in PACER, though it may pop up soon. I'm guessing that they'll try to either get some sort of extension or explain why those records are somehow inaccessible -- but it could get interesting.

Filed Under: criminal cases, discovery, doj, nsa, nsa surveillance, phone records, terrance brown

DOJ's History Of Ignoring The Rules When Getting Phone Records Of Journalists

from the not-the-first-time dept

There was, of course, plenty of talk about the DOJ getting two months of phone records concerning calls involving some reporters. Since the original story came out, reporters have quickly deduced what the government was after: they were trying to figure out who leaked information about the CIA stopping a plane bombing plot, because the "would be bomber" was actually working for the US, and revealing the news apparently ended the work early. The DOJ going batshit insane over a leak to the press is, unfortunately, par for the course for the Obama administration, which has been ridiculously aggressive (to an unprecedented level) in going after anyone who leaks to the press.

And while some are still trying to argue that this is a non-story, what may be more important is pointing out what a complete bullshit response the DOJ gave to this whole thing:

Despite the seizure of the phone records, a Justice Department spokesman said the agency valued freedom of the press and was “always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

The "right balance"? Well, let's take a look about how "always careful and deliberative" the DOJ is on these kinds of things. Julian Sanchez helpfully points us to the infamous 2010 report from the DOJ's Inspector General detailing how the FBI regularly abused "exigent letters" (pdf) -- better known as National Security Letters or NSLs -- to get phone records. This report got plenty of attention at the time, but if you don't recall all 300 pages of it, there's a discussion about getting info from reporters' call logs starting on page 89 (of the official pagination, which falls on page 102 of the pdf) detailing heavily redacted examples of getting reporters' phone records without getting the proper authorization or approvals. What is striking is the extremely cavalier attitude law enforcement seems to have about this. Here is just one example of the DOJ's "always careful and deliberative process" when "seeking to strike the right balance" in getting access to reporters' phone records. This case was an investigation into a leak that appeared in articles in the NY Times and the Washington Post. The full story is much longer, but here are the key points:

On November 5, [redacted], the case agent sent an e-mail asking another Special Agent in the [redacted] Field Office to inquire, in the other agent's capacity as his squad's liaison to the CAU, whether the on-site communications service providers could obtain telephone toll records of U.S. persons making [redacted] calls [redacted]. The case agent's November 5 e-mail listed 12 [redacted] telephone numbers, 8 of which were identified in the e-mail as belonging to Washington Post reporters [redacted] and Washington Post researcher [redacted] and New York Times reporters [redacted] The email identified a 7-month period -- a few months before and a few months after the published articles -- as the time period of interest for the leak investigation.

[....] However, in absence of any request from the case agent or anyone in the FBI, the CAU SSA issued an exigent letter dated December 17, [redacted], to Company A for telephone records of the reporters and others listed in the case agent's November 5, [redacted], e-mail. We determined that the SSA did this without further discussion with the case agent or the Special Agent who had asked only whether such records could be obtained through on-site providers, not that the records should be obtained.

The CAU SSA's exigent letter sought records on nine telephone numbers, seven of which were identified in the e-mail exchanges described above as belonging to Washington Post and New York Times reporters or their news organizations' bureaus in [redacted].....

The exigent letter did not specify the 7-month interval noted in the case agent's November 5 e-mail, or contain any date restrictions. The exigent letter also stated that the request was made "due to exigent circumstances" and that "subpoenas requesting this information have been submitted to the U.S. Attorney's office who will process and serve them formally on [Company A] as expeditiously as possible." However, this statement was not accurate. A subpoena request had not been sent to the U.S. Attorney's Office at the time the exigent letter was served, or at any time thereafter.

That's the "always careful and deliberative process"? Hmm. Later in the report, they note that even when the agent only had asked about (and never actually sought) 7 months of records, thanks to the NSL, they got months and months of records, nearly none of which was actually in the 7 month period the agent was interested in. All total, they were sent 1,627 telephone call records, and only three calls were from that 7 month period. Oh, and once they got those records, they were uploaded into a database, where they were searchable by other FBI staff and other government personnel as well.

The report notes a few other examples of agents getting access to reporter phone information without the proper authorization as well.

Of course, once this came out the FBI and DOJ insisted that this was no big deal. But, in a coincidence of timing, just before this whole story broke, the FBI was in court, seeking to keep secret the memo that gave the "legal basis" for its past use of NSLs to access phone records. While the DOJ insists that it's not using these processes any more, it still thinks it should keep the legal basis for why it issued those letters a complete secret. They claim, ridiculously, that this would "chill deliberative discussions within the Executive Branch." But people aren't asking for deliberative discussions, just the very specific claimed legal basis for issuing such letters. And, of course, the DOJ would prefer not to say.

Given all of this, is it any wonder that people suspect the DOJ of being up to no good?

Filed Under: doj, eric holder, exigent letters, fbi, nsls, phone records, privacy, regulations, reporters, rules

Obama Administration Says It Can Spy On Americans, But Can't Tell You What Law Allows It

from the secret-laws! dept

Remember how President Obama, while campaigning, promised to reject the questionable spying practices of the federal government of President Bush? Yeah, forget all that. Over the past two years, we've seen time and time again that he's actually extended those abuses even further. The latest to come out is that the Justice Department is now claiming that the FBI has the right to get phone records on any call made from inside the US to an international number without any oversight. You may recall a few years back that there was a similar controversy, when it came out that the FBI would regularly just call up phone companies and ask for records -- despite the fact that this violates certain laws designed to protect consumer privacy. Sometimes, they would just use post-it notes.

Apparently, a year ago, McClatchy newspapers put in a FOIA request, asking for the details of a particular Office of Legal Counsel (OLC) memo that was mentioned in the (previously released, but highly redacted) report that showed how frequently the FBI abused the law in this manner. The OLC took its sweet time responding, but finally responded, and in the cover letter admitted that the Obama administration believes it is perfectly legal for the FBI to route around the in-place oversight for getting access to such records and claimed that the law said so.

Which law says so? Oh, see, that they can't say. Yes, the part of the letter that explains which law lets the FBI get these records without oversight was redacted.

It's a secret law! And here I thought, in the US, if the government was going to base actions on a particular law, at the very least, they were supposed to tell you what law. Apparently, the Justice Department under the Obama administration does not believe that to be the case.

Basically, what this means is that the federal government believes that it's free to request information without first getting court approval -- and without telling the public what law says they're allowed to get this information. That's not what the laws on the books seem to say at all. But, of course, big telcos such as AT&T, who are so closely tied to the government, are going to roll over and give the government such info (or, perhaps, give them direct access to the info), even if it violates other laws. Why do you think President Obama voted to support giving telcos retroactive immunity on this issue, while he was running for President despite having earlier said he was against it? Now that he's in power, he apparently is perfectly happy to let the FBI twist the clear intentions of the law to spy on Americans without oversight, and then to refuse to reveal what law he's relying on to make such spying on Americans without oversight legal.

McClatchy quotes Michael German, a former FBI agent, who now works for the ACLU pointing out the obvious:

"It's wrong that they're withholding a legal rationale that has to do with the authorities of the FBI to collect information that affects the rights of American citizens here and abroad.... The law should never be secret. We should all understand what rules we're operating under and particularly when it comes to an agency that has a long history of abuse in its collection activities."

And so far, it doesn't seem like most people care. About the only politician who really seems concerned about this is Senator Wyden, who says this level of secrecy "is a serious problem" and he's "continuing to press the executive branch to disclose more information to the public about what their government thinks the law means." Once again, kudos to Senator Wyden for being one of a very small number of politicians who seems to consistently be concerned about the rights of individuals. But it's sad that the rest of our elected officials aren't up in arms about this. The government shouldn't be spying on Americans, and if it is, it should at least have to tell Americans what law it's basing that decision on.

Filed Under: fbi, justice department, phone records, spying, warrantless

Obama Quietly Issues Ruling Saying It's Legal For The FBI To Break The Law On Accessing Phone Records

from the and-it-gets-worse dept

Following the report earlier this week that the FBI regularly broke the ECPA law, in obtaining information from telcos without going through the proper process (and, in some cases using just a post it note!), some interesting details from the full report have come to light. The two key ones? First, "the Obama administration issued a secret rule almost two weeks ago saying it was legal for the FBI to have skirted federal privacy protections." And, second, the original idea to use these bogus "exigent letters" didn't come from the FBI, but from an AT&T employee. We noted in the original report that no one seemed to be placing any blame on the telcos for allowing this, and why they're clearly abusing the law, in giving out such info without the proper rules being followed, seems like a big question:

The telecom employees were supposed to be responding to National Security Letters, which are essentially FBI-issued subpoenas. But those Patriot Act powers say the target must be part of an open investigation and that a supervisor has to approve it. While they require some paperwork, FBI agents have been issuing about 40,000 such NSLs a year.

But an AT&T employee provided the unit with a way around some of those requirements. The employee introduced them to so-called 'exigent letters.' Those letters, first used immediately following 9/11, asked for information by saying that the request was an emergency and that prosecutors were preparing a grand jury subpoena. The letter falsely promised that the subpoena, which gives the telecoms legal immunity, would be delivered later, the report said.

What's more, the report noted that the cozy relationship between the bureau and the telecoms made it hard to differentiate between the FBI and the nation's phone companies.

"The FBI's use of exigent letters became so casual, routine and unsupervised that employees of all three communication service providers told us that they -- the company employees-- sometimes generated the exigent letters for CAU personnel to sign and return," the inspector general reported.

In fact, one AT&T employee even created a short cut on his desktop to a form letter that he could print out for a requesting FBI agent to sign.

Even that became too much. Agents would request "sneak peeks," where they'd ask if it was worth their time to file a request on a given phone number, the inspector general noted. The telecom agents complied. Soon it graduated to numbers on Post-it notes, in e-mails or just oral requests.

No wonder the telcos were so adamant about getting immunity on the warrantless wiretapping. It appears that the issue of telcos ignoring the rules when it came to your privacy goes pretty deep.

As for Obama issuing a rule saying that breaking the law is legal... how does that work? The president doesn't get to just declare something legal, especially when it clearly violates both the letter and intent of the law.

Filed Under: fbi, national security letters, obama administration, phone records, spying
Companies: at&t

Once Again, FBI Caught Breaking The Law In Gathering Phone Call Info; But Real Issue Is Why Telcos Let Them

from the surprise-surprise dept

A few years back, we found out that the FBI regularly violated the Patriot Act, issuing "National Security Letters" to access information that they had no right to access. So it should come as no surprise that during that same period, the FBI was also regularly violating the law to get phone call records without following the proper procedures, even beyond the problem with the NSLs. In fact, it appears the FBI may have violated the law in about half of all of these cases. Basically, it sounds like the FBI just went to phone companies, said the magic word ("terrorism!!") and the phone companies just handed over records -- even without using NSLs, but instead using an "exigent circumstances letter," which could be used even more easily than an NSL, but which required an NSL to follow it up eventually. The FBI is now basically admitting to screwing up and that using these "ECLs" without followup NSLs almost certainly violated the Electronic Communications Privacy Act. The FBI's excuse? They're claiming that the process was "good-hearted but not well-thought-out." Doesn't that make you feel better?

The story heads into Keystone Kops territory, as some in the FBI pushed for actually following up the ECLs with real NSLs, but the FBI was pretty slow. Eventually, someone signed a "blanket NSL" supposedly to cover all of the previous ECLs that never had a followup NSL -- except the guy who signed the blanket NSL later claimed that he couldn't recall ever signing anything, and insisted that NSLs should be for specific cases only. Oops.

Of course, lost in all of the attention over the FBI's process is the rather serious unanswered question of why the telcos didn't seem to push back when handed a bogus demand to hand over records that did not match the official process and violated the law. Shouldn't the telcos have some responsibility for actually making sure that a random FBI agent yelling "terrorism" has some sort of official basis to get information out of the them?

Filed Under: ecpa, exigent circumstances letters, fbi, national security letters, phone records, privacy, surveillance, telcos
Companies: fbi