Surprise: Intelligence Community Comes Out Against Congressional Plan To Weaken Intelligence Oversight

from the hmmmm dept

Well, this is somewhat unexpected. Earlier this year, we noted that Congress was working on a plan to undermine the Privacy and Civil Liberties Oversight Board (PCLOB). But apparently, the Intelligence Community, in the form of Director of National Intelligence, James Clapper, is against this idea.

The PCLOB was initially created as part of the PATRIOT Act, but was basically given no real power. In 2007, Congress finally gave it a bit more power and independence, only to watch both the Bush and Obama administrations ignore it by not appointing anyone to the board. That finally changed in 2012 -- just in time for the Snowden leaks (though it has been without a chairperson, since the last one left earlier this year). The PCLOB then put out a scathing report about the NSA's mass surveillance on Americans under the Section 215 program, though it wasn't as concerned about PRISM and upstream collection under the Section 702 program. For years now, the PCLOB has supposedly been investigating surveillance under Executive Order 12333, which we've been told by insiders is the main program the NSA relies on for surveillance (the others just fill in the gaps).

A key part of the "reform" from Congress, beyond cutting funding, would be to limit the PCLOB to only reviewing surveillance on Americans, which would basically cut off its ability to study EO 12333.

We certainly found it concerning that Congress would seek to pull the rug out from under the PCLOB, but we certainly didn't expect James Clapper to agree with us. And yet...

The intelligence community "strongly opposes" part of the proposed legislation seeking to limit the jurisdiction of PCLOB to the privacy rights of Americans, and not foreigners, the letter, signed by Director of National Intelligence James Clapper, reads.

PCLOB is "uniquely situated" to give advice to spy agencies on how to respect global privacy interests, and limiting its authority "is a significant step backward from the reforms that the president has directed."

The letter apparently also suggests that President Obama would veto such a bill if it came across his desk. This is a bit of a surprise all around. At the very least, it does make you wonder how the House and Senate Intelligence Committees will continue to support the idea of undermining the PCLOB when not even the intelligence community itself is fine with it. Could it really be that the two Congressional committees in Congress in charge of "oversight" for the intelligence community want even less oversight than the intelligence community itself?

Filed Under: civil liberties, congress, james clapper, odni, oversight, pclob, privacy, surveillance

Poland To Massively Expand Surveillance, Reduce Civil Liberties

from the whoa dept

From the perspective of an American, it's perhaps too easy to assume that everyone around the world has the same amount of fatigue over surveillance and the terrorism scare that I do. After all, even a good percentage of Americans still consider the threat of international terrorism to be a major cause for concern within their own lives, regardless of how much or little it actually impacts them directly. But Europe is dealing with its own cases of terrorism and the associated concerns that arise from it. Still, it's disappointing to watch one European nation, Poland, expand surveillance powers and internet censorship in very big ways.

From Freedom House, an independent organization pushing for freedom and human rights around the world, we learn that Poland has essentially passed new laws in which the only direction pursued is in more surveillance and less civil liberty.

In response to the Polish government’s new counter-terrorism and surveillance laws, which allow authorities to block websites and telecommunications, limit the freedom of assembly, and allow secret surveillance of virtually the whole population, Freedom House issued the following statement:

“Granting open-ended powers to intelligence agencies to counter terrorism at the cost of every citizen’s privacy and freedom marks a clear abuse of power by the government,” said Daniel Calingaert, executive vice president. “The government seems determined to allow police and intelligence agencies to monitor all personal data and all communications without needing to establish the existence of any actual threat, a disturbing step toward removing checks and balances on government action."

Far from blowing the situation out of proportion, the law approved by the lower house of parliament in Poland is equal parts dangerously vague in some areas, granting government power, while unfortunately specific in others, where rights of the public are to be reduced. For instance, the law reportedly deals with granting law enforcement and government the ability to shut down communications, websites, and to monitor foreign citizens, with the only real specificity being that they can do all that for three months without even a court order. The powers during those three months are virtually unlimited, because they aren't reigned in by the language in the bill. It's almost as though they were writing the law to ensure it will be abused.

Meanwhile, the law also expands what is considered "terrorism", because when has that ever gone wrong? Included is also an extension of how long a suspect can be held without being charged to fourteen days.

And what is the public getting out of this? I suppose the answer is the warm and fuzzy feeling of safety through the watchful eyes of an overbearing government? Whatever the Polish public is getting, it certainly isn't freedom.

Filed Under: civil liberties, mass surveillance, poland

Internet Protections Enshrined In Brazil's Marco Civil Framework Under Threat From New Laws

from the this-is-why-we-can't-have-nice-things dept

A couple of years ago, Techdirt wrote about Brazil's Marco Civil -- variously called a "constitution for the Internet," and a "Magna Carta for the Web." Whatever you want to call it, the Marco Civil was a heartening example of the rights of Internet users being strengthened for a change. In June 2015, one year after it passed, an article on the Council on Foreign Relations site noted its wide-ranging impact:

The Marco Civil has been instrumental in curbing the power of the Brazilian government from having undue influence over the net and its content. The law prevents the government from taking down or regulating content, or exercising any pressure on online platforms (e.g. the Twitters and YouTubes of the world) or Internet service providers. Only the courts, by means of due process, and limited by clear legal thresholds, can actually take action regarding online content when it infringes on other rights.

Of course, this was too good to last. As Andrew McLaughlin explains on Medium, the Marco Civil is in danger:

Amid the tumult and chaos of Brazil's current (and colossal) political crisis, the moment of counter-attack has arrived. Under the guise of fighting "cybercrime", a group of Brazilian legislators, acting via a Parliamentary Commission of Inquiry, has introduced 8 bills that, to state it directly, would give the Brazilian government sweeping powers to censor and control the Internet.

The EFF has a summary of what those bills propose:

Allowing police warrantless access to IP addresses;

Requiring sites and apps to monitor content to prevent new sharing of materials already deemed offensive by court decision;

Criminalizing improper computer system access that presents a "risk of misuse or disclosure" of data, even if no actual misuse or disclosure occurs -- broad and vague terms that also apply to actions with no criminal intent, jeopardizing legitimate security research that might never be done if obtaining prior permission were a legal requirement;

Allowing judges, in direct violation of net neutrality rules, to block sites and applications that are used for criminal purposes or that don’t comply with demands for user information.

Clearly, if these bills pass in their present form, they will nullify many of the safeguards found in the Marco Civil. The key vote is expected to take place on April 27, and the EFF has a page where you can ask Brazilian lawmakers to reject the proposals. There is also a joint statement to the Brazilian congress, which companies active in the country are invited to sign.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: brazil, civil liberties, internet, internet freedom, marco civil

Obama Administration's Expansion Of Domestic Spying Powers Dwarfs The 'Good Old Days' Of Bush And John Yoo

from the a-backbone-too-far dept

I guess the real accomplishment of "The Most Transparent Administration" is how much it exposed Americans to domestic surveillance. I suppose that's its own form of "transparency."

Just Security's Patrick Toomey notes that this administration has embraced legal theories wilder and more expansive than those presented by John Yoo on behalf of the Bush administration. Yoo, despite his willingness to treat the collection of communications like a DUI checkpoint for terrorism, had his limits. This administration, however, has seen those limits and lowered them.

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.

Going further, this administration has decided to believe that any communication traveling outside of US borders is a communication with a foreigner, even if it's a domestic-to-domestic conversation taking an extremely circuitous route. If it crosses one of the overseas backbones the NSA has tapped into, it's fair game, no matter who the ultimate recipient of the communication actually is, or where they reside.

This is the NSA's upstream collection under Section 702, which now goes much, much further than Yoo's version ever did. Toomey notes Yoo assured FISA Court Judge Kollar-Cotelly that this collection was not the Bush administration giving itself permission to seize and search every international communication. But that's exactly how the Obama administration has chosen to interpret its powers.

As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

So, John Yoo, the architect of what was once thought to be the greatest expansion of government surveillance powers, is now just the guy who laid the foundation for the intelligence community today. What the Bush administration considered to be too far is the Obama administration's starting point. Considering the breathtaking reach of the NSA under this administration, it's hardly surprising a few leakers have taken it upon themselves to reveal to the public what's being done to them by their government in the name of national security.

Filed Under: civil liberties, john yoo, obama administration, president obama, privacy, surveillance

Apple Hires Former Solicitor General, Who Lost Wife In 9/11, To Defend It Against FBI

from the if-you're-going-to-pull-emotional-strings-about-terror... dept

Two can play at the "pull on the heart strings about losses due to terror" game apparently. While the FBI has rolled out the "but the poor victims of San Bernardino" argument for why it wants to force Apple into hacking the security of its own customers, Apple has countered with a big gun of its own: it has hired former Solicitor General Ted Olson to defend the company against the FBI in this case. Olson is a mega-star in legal circles. He's argued tons of cases before the Supreme Court, and of course, was Solicitor General under George W. Bush (whose election he helped ensure in representing him in Bush v. Gore).

But... he's also well known because his wife, Barbara Olson, was onboard American Airlines Flight 77 that was one of the four hijacked planes during 9/11 (it was the one that crashed into the Pentagon). I'm sure that Apple hired Olson because of his legal and litigation skills. He's obviously extremely qualified for the job. But the fact that he also presents a sympathetic narrative concerning victims of terrorist attacks seems like an added bonus in a bizarre fight that seems to focus almost as much on the public perception of parading victims around, as it does around the actual legal issues.

Olson already has been out in public arguing on behalf of Apple. I'd embed the video from ABC but (irony alert) they don't use HTTPS encryption, so I can't... However, Olson does note:

Apple has a responsibility to maintain the trust and faith of millions of people who have depended on Apple to produce a product that protects their privacy and their intimate personal lives. This is a Pandora's box. We're not just talking about one magistrate. There are hundreds of magistrates. There are hundreds of other courts. There's no limit to what the government could require Apple to do if it succeeds this way....

[....]

This is not just one magistrate in San Bernardino. There are judges all over this country, and we're talking about foreign governments. People in foreign countries are going to be very, very susceptible to invasion of their privacy if Apple can be forced to change its iPhone.

[....]

Congress has decided not to enter into this area and not to require Apple to do, essentially, what is very difficult to do, and would require Apple to comply with these kinds of court orders all over the country and other parts of the world, damaging your personal privacy, your financial privacy, your health records, your location, and where your children are. The implications of this are quite serious.

... And remember, terrorists seek to change our lives. They wish to take away our civil liberties. We can't surrender our civil liberties and give the terrorists victory that they actually seek.

He may be overstating the case, in that things like location information aren't at stake here, but a lot of the other stuff is -- and he's right that we shouldn't be compromising our civil liberties in response to terrorist attacks.

Filed Under: backdoors, civil liberties, doj, encryption, fbi, going dark, ted olson, terrorism
Companies: apple

Settlement In Lawsuit Over NYPD's Surveillance Of Muslims Bringing A Long List Of Reforms To City's Policing

from the suing-the-cops-back-into-compliance-with-the-Constitution dept

The NYPD considers itself to be the finest police force in the nation, if not the world. But its track record says otherwise. It lost a lawsuit over its "stop and frisk" program, thanks to its unconstitutionality and appearance of racial bias. It is currently in the middle of a lawsuit related to illegal summons quotas -- one in which it destroyed documents it was ordered to preserve. And now, it has just lost another lawsuit related to its biased policing.

The NYPD's pervasive surveillance of the city's Muslim population violated civil liberties on a massive scale. Despite being given an incredible amount of leeway to pursue its counter-terrorist activities, the so-called "Demographics Unit" did useless things like pressure informants into making stuff up to justify surveillance efforts and designate entire mosques as terrorist entities. What it didn't do, however, is generate any useful intelligence.

The city has just settled with the plaintiffs in the Muslim surveillance lawsuit, which will bring with it a slew of reforms.

The proposed settlement includes modification of the guidelines along two principal lines: incorporating new safeguards and installing a civilian representative within the NYPD to reinforce all safeguards.

A civilian representative will be a welcome change from the internal "oversight" performed by the NYPD -- which has been pretty much nonexistent. The program was started by an ex-CIA officer who seemingly assumed he could treat US citizens with the same disregard as foreign nationals.

A long list of stipulations could bring about much-needed changes in NYPD counter-terrorist program.

• Prohibiting investigations in which race, religion, or ethnicity is a substantial or motivating factor
• Requiring articulable and factual information regarding possible unlawful activity before the NYPD can launch a preliminary investigation into political or religious activity
• Requiring the NYPD to account for the potential effect of investigative techniques on constitutionally protected activities such as religious worship and political meetings
• Limiting the NYPD’s use of undercovers and confidential informants to situations in which the information sought cannot reasonably be obtained in a timely and effective way by less intrusive means
• Putting an end to open-ended investigations by imposing presumptive time limits and requiring reviews of ongoing investigations every six months
• Installing a civilian representative within the NYPD with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities. The civilian representative must record and report any violations to the police commissioner, who must investigate violations and report back to the civilian representative. If violations are systematic, the civilian representative must report them directly to the judge in the Handschu case.
• Removing from the NYPD website the discredited and unscientific “Radicalization in the West” report, which justified discriminatory surveillance, and affirming that the report is not and will not be relied upon to open or prolong NYPD investigations

These reforms aren't set in stone yet. A still-pending class action suit over violations of the NYPD's Handschu Agreement (an agreement that was subverted by the CIA officer heading the Demographics Unit, who used post-9/11 terrorism fears to carve huge holes in the stipulation, which forbade the surveillance of First Amendment-protected activity) must be resolved before the proposed settlement can go into effect. Fortunately, the remaining hearing in that case involves comments from the plaintiffs, rather than an attempt by the city to dial back the proposed reforms.

The NYPD has a chance to salvage its reputation. The problem is, it doesn't see it that way, despite losing major lawsuits over two of its biggest programs. Without a doubt, the next few weeks will see plenty of criticism from the usual sources: District Attorney Cyrus Vance, NYPD Commissioner Bill Bratton and, because there's apparently no way to shut him up, NYPD union boss Pat Lynch. Any statements will only make these officials look worse as they'll be arguing on behalf of the wholesale violation of civil liberties.

Filed Under: civil liberties, demographics unit, lawsuit, muslims, nypd, surveillance
Companies: aclu

Techdirt Reading List: The Piracy Crusade

from the read-it-now dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also help support Techdirt. This week we're talking about a book from a couple of years ago but which still deserves plenty of attention. It's Aram Sinnreich's The Piracy Crusade: How the Music Industry's War on Sharing Destroys Markets and Erodes Civil Liberties. That subhead gives you a good sense of what the book is about, obviously, but I highly recommend reading the whole thing. It's thorough and tremendously thought-provoking, even if you already follow these issues closely.

For nearly two decades we've been discussing this space and trying to get people to understand that the fight over copyright isn't about how artists should get paid -- that tends to just be a smokescreen by the giant gatekeepers who have done an awful lot to screw over actual content creators for years. It's a fight about freedom of speech and civil liberties -- and yet, by turning it into a debate around "piracy" a small conglomerate of gatekeepers have been successful in clamping down on civil liberties, freedoms and free speech. Sinnreich's book does a great job dismantling the mythical arguments from the gatekeepers while highlighting the important civil liberties issues at stake in the copyright fights.

The book is a tremendous contribution to this discussion and a worthwhile read if you want to really understand some of the core issues that underlie the fight over copyright.

Oh, and of course, you can also download the book for free, if you'd like. Vuze is offering it as a bundle that comes with not just the books, but some video lectures by Sinnreich as well. Of course, if you buy it from the Amazon link above, it also helps Techdirt by giving us a cut, but in case you were looking for other options, Vuze has you covered.

Filed Under: aram sinnreich, civil liberties, copyright, free speech, piracy crusade, reading list

House Intelligence Committee Trying To Block Privacy & Civil Liberties Board From Doing Its Job

from the well-isn't-that-great dept

The House Intelligence Committee is supposed to be providing "oversight" of the intelligence community and preventing it from violating our civil rights. That's why it was formed in the first place, out of the Pike Committee, when Congress actually investigated abuses by the NSA, CIA and FBI. But, over the decades, the House Intelligence Committee has, instead, turned into a cheerleader for the intelligence community and seems to work to better hide its activities from the public, rather than oversee them. That's part of the reason why we now have a Privacy and Civil Liberties Oversight Board (PCLOB) who is actually supposed to be investigating these programs and protecting our civil liberties.

Thus, it should come as little surprise that the House Intelligence Committee is trying to stop the PCLOB from doing its job, and has come up with the pettyist of petty reasons for doing so: it's upset about an opinion piece that was written by the PCLOB's chairperson.

Back in April, PCLOB chair David Medine criticized the lack of oversight concerning the use of military drones. That opinion piece argued:

Now is the time to address the questions President Obama has raised. We must seize the opportunity to institutionalize a more transparent and dispassionate process, defend the hallmarks of due process, and affirm that neither the executive branch nor U.S.-born terrorists are outside the law. We recommend a fine-tuned version of the second approach raised by President Obama: an independent, executive branch review panel designated to assess the evidence against proposed targets and make non-binding recommendations to the President as to whether the targeting is appropriate before efforts are made to kill the targets. One candidate for such a panel is the existing Privacy and Civil Liberties Oversight Board, an independent, bipartisan agency in the executive branch.

In short, a fairly modest request: if we're going to be droning people -- including American citizens, shouldn't there at least be some oversight? To the House Intelligence Committee, however, apparently this is sacrilege. Thus, punishment in the form of blocking the PCLOB from having the power to review any information concerning covert actions by the US government:

Republicans on the House Intelligence Committee, upset by an opinion piece penned by the chairman of a government watchdog on privacy issues, have advanced a measure to block the agency’s access to information related to U.S. covert action programs.

The provision, in the 2016 intelligence authorization bill, takes a jab at the Privacy and Civil Liberties Oversight Board, an independent executive branch agency whose job is to ensure that the government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.

In other words, because the chair of the Privacy and Civil Liberties Oversght Board expressed some concerns about the impact on civil liberties of a "covert" (ha ha) program, the House Intelligence Committee has blocked it from investigating any further. How is this "oversight" by the House Intelligence Committee and not "covering up"? Of course, they're coming up with all sorts of silly excuses about how this is about keeping the PCLOB from straying outside its mandate:

That article “really stirred the pot,” said one congressional aide, who like others interviewed for this article was not authorized to speak for the record. The committee majority saw that suggestion, along with other reviews the board was undertaking, the aide said, as “mission creep.”

The provision, which the committee passed on a voice vote last week, was an attempt by Republicans to make sure the board members “stay in their lane,” as another aide put it. “Covert action, by its very definition, is an activity that the United States cannot and should not acknowledge publicly,” the committee’s chairman, Devin Nunes (R-Calif.), said. “Review of such activity is ill-suited for a public board like the PCLOB.”

Yes, but the drone program has been acknowledged publicly, and why does that even matter when we're discussing the privacy and civil liberties impact of these programs?

And, why have we allowed our elected officials to become the enablers of civil liberties abuses, rather than the protectors of civil liberties?

Filed Under: civil liberties, david medine, drones, house intelligence committee, pclob, privacy

Canada Passes 'Anti-Terror' Spy Bill, Taking Away Civil Liberties

from the because-fear dept

While the US is actually showing signs of (marginally) limiting the NSA's surveillance capabilities, Canada has gone in the other direction. A month ago we mentioned the push on bill C-51 and it has now passed the Senate after passing the House of Commons a few weeks ago and is now the law in Canada. It's a broad snooping charter for the government to have much greater surveillance powers and take away civil liberties for Canadians, all in the name of protecting them from terrorists. This follows on France passing similar laws and the UK pushing for something similar as well. It appears that governments around the globe are seizing on the "Keep Fear Alive" mantra to get greater and greater power to spy on citizens.

Filed Under: c-51, canada, civil liberties, surveillance, terrorism

Chris Christie: Your NSA Fears Are Bullshit And Civil Liberties Advocates Are Extremists

from the unelectable dept

The nice thing about hating both of America's stupid political parties is you get to make fun of everyone. That said, occasionally one political candidate or another says something so stupidly wrong to support a stupidly wrong political position that your brain screeches to a halt aghast. Today's cerebellum stopper is Chris Christie, who most commentators seem to think is going to be running in the next presidential election. If he continues this line of, "Civil liberties are for extremists and NSA spying concerns are baloney because 9/11" rhetoric, however, it's probably going to be a short foray into the primaries.

Civil liberties advocates’ fears about the government’s intelligence efforts are “baloney,” New Jersey Gov. Chris Christie will say Monday during a speech in the early primary state of New Hampshire, calling for expanded American military and intelligence programs.

The government is not the enemy when it comes to fighting terrorist threats, he will say, according to a copy of his prepared remarks provided by his political action committee.

Christie went on to say in that speech that the American people should not listen to Edward Snowden, because Snowden is a criminal, and also Vladimir Putin, and especially because 9/11, obviously. It's an interesting political move, I think, considering that a majority of Americans believe the government has overreached on domestic spying, but I'm not here to tell Christie how to run his campaign. I am here to tell him that he isn't allowed to make plainly false claims about this country's ideals and the people that developed them, however.

“There are going to be some who are going to come before you and are going to say, ‘Oh, no, no, no. This is not what the Founders intended.’ The Founders made sure that the first obligation of the American government was to protect the lives of the American people, and we can do this in a way that’s smart and cost-effective and protects civil liberties. But you know, you can’t enjoy your civil liberties if you’re in a coffin.”

This, in case you're confused, is absolute nonsense. That's not to say that protecting American lives wasn't high on the founding fathers' list of things to do. It certainly was. It appears just below protecting their freedom, however. Christie suggesting that it was the founding fathers' intention to negotiate some compromise between freedom and safety is fiction. Man, if only there was some catchy phrase from a historical figure that could some this all up for me in an easily reproducable, easy-to-tweet to Christie fashion.

Damned extremists, always trying to, you know, start the country that Christie is now going to run for chief executive of. There are other examples, of course, although the chief example of the founding fathers' willingness to put freedom before safety is probably, oh I don't know, the Revolutionary War. I wasn't there, but I'm pretty sure that war wasn't all that safe.

Look, the point of all this is that 9/11, while certainly not forgotten, is in the rearview mirror and can't be invoked as the boogeyman to push bad, freedom-thieving policy on Americans any longer. We've had over a decade of that and it just isn't going to work any more. But, hey, if Chris Christie wants to make himself un-electable, I'm all for it. Give me a better candidate or give me death.

Filed Under: chris christie, civil liberties, nsa, surveillance