Senate Fight Is On Over NSA Surveillance Reform

from the line-up-the-fud dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Key Fighter For Civil Liberties, Russ Feingold, Running To Return To The Senate

from the good-news dept

We've pointed out for years how strong a supporter of civil liberties Senator Ron Wyden has been, but the one guy who probably had an even stronger record on that front was Senator Russ Feingold. Feingold was the only Senator who consistently voted against the PATRIOT Act and increases to government surveillance. In fact he was the only Senator to vote against the PATRIOT Act in the first place. And, at that time, he gave a speech in which he accurately predicted how the NSA would abuse the PATRIOT Act:

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

If anything, Feingold underestimated how this provision would be used, because even he didn't predict it would be used to have phone companies hand over every record on every phone call. Feingold was also the first to raise the alarm about "secret interpretations" of the law, well before others started pointing that out as well.

Thus it was ridiculous and disappointing to see Feingold voted out of office in the 2010 "Tea Party" wave. He lost to Senator Ron Johnson, a Tea Party favorite... who went on to vote in favor of key bills to expand the spying power of the intelligence community.

Feingold has now announced that he wants that Senate seat back, and will be challenging Johnson in the 2016 election:

"[L]et’s fight together for change. That means helping to bring back to the U.S. Senate strong independence, bipartisanship and honesty," Feingold said in a video announcing his campaign. "So today I'm pleased to announce that I'm planning to run for the United States Senate in 2016. And this effort begins with listening to you. "

His announcement didn't mention anything about surveillance or civil liberties, but considering his track record on that front, he would be an important addition to the Senate on these key issues -- especially since we lost Senator Mark Udall in the last election, after he had picked up many of the civil liberties issues that Feingold used to champion.

Filed Under: civil liberties, patriot act, ron johnson, russ feingold, senate

EFF Withdraws Support For USA Freedom Act After Last Week's Court Ruling

from the changing-the-legal-landscape dept

There has been some concern all along that the new USA Freedom Act, isn't necessarily a good deal -- but for the most part folks in the civil liberties world tended to agree with the general view well presented by Access, that the USA Freedom Act is "better than nothing, but less than we deserve." That is, it is reform in the right direction, if very limited. Yes, there were some who disagreed, leading to a bit of a split among individuals and groups who are normally together on issues like this. Last week's big ruling about NSA surveillance under Section 215 throws a wrench in just about everything, however.

It was a huge win, but it immediately raised a bunch of questions. Currently on the table (and requiring some sort of vote before June 1st -- or Section 215 disappears...) are two main proposals. The USA Freedom Act, which renews Section 215, but somewhat limits the ability of the NSA to use that authority for bulk collection, and Mitch McConnell's bill that just re-authorizes Section 215 straight up, through 2020. Before the ruling last week, McConnell's plan seemed absolutely ridiculous. But revisit it under last week's ruling. One could make the argument that if Congress just took up McConnell on his offer, and renewed 215... it would still lead to the end of the bulk data collection, because the Second Circuit has now said that Section 215 doesn't authorize such a program. This, of course, would be subject to an appeal and a big fight and an eventual Supreme Court decision, so there's some risk involved and it might not end up where things are now. But, suddenly, one could argue that McConnell's bill actually would cut off the program that people are so focused on killing off (leaving aside the other surveillance programs).

And, given that fact, the USA Freedom Act seems like even less of a good deal, because it actually lays out more specifically ways in which the NSA can collect data, if probably not quite everyone's data. So, under that ruling again, it's arguable that the current USA Freedom Act would lead to greater NSA surveillance than even renewing Section 215! That's kind of mixed up and crazy.

Either way, this shakeup has made people realize that USA Freedom may no longer be the best option on the table. There's a new ground floor to deal with here -- and that means that folks like the EFF, who grudgingly supported USA Freedom as an interim step, have now pulled their support, arguing that USA Freedom needs much more in it to make it worthwhile again:

In light of the Second Circuit’s decision, EFF asks Congress to strengthen its proposed reform of Section 215, the USA Freedom Act. Pending those improvements, EFF is withdrawing our support of the bill. We’re urging Congress to roll the draft back to the stronger and meaningful reforms included in the 2013 version of USA Freedom and affirmatively embrace the Second Circuit’s opinion on the limits of Section 215.

Most importantly, the Second Circuit’s correct interpretation of the law should be expressly embraced by Congress in order to avoid any confusion going forward about what the key terms in the statute mean, especially the terms “relevant” and “investigation.” This recognition could be in the bill itself or, less preferably, in legislative history. The House Judiciary Committee has already included such language in its report to the full House of Representatives, but now the Senate must include the language in the bill or in its own legislative history. This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection.

As the EFF statement notes:

This is also an opportunity and a new context for Congress to address the shortcomings of the newly introduced USA Freedom Act that we previously wrote about. Congress should put back key provisions that were dropped along the way as well as remove those that were introduced at the behest of the intelligence community.

First, the "super minimization" procedures, which were key privacy procedures that mandated the deletion of any information obtained about a person not connected to the investigation, should be reintroduced. Key provisions establishing a higher legal standard and compliance assessment for the use of pen register/trap-and-trace devices, legal standing to sue the government over surveillance practices, and the original transparency provisions allowing government and corporate disclosure of surveillance orders should also be resuscitated.

Second, provisions introduced by the intelligence community that must be deleted include an increase in the maximum sentence for material support to terrorism to 20 years. Another change was the introduction of a clause allowing the intelligence community to obtain an emergency exception to spy within the United States on a “non-United States person” for 72 hours—without any court order. These were added as “sweeteners” without any public showing that they are necessary.

The next few weeks are going to be rather interesting. At the very least, last week's ruling threw a bit of a wrench into the way most people expected this fight to play out.

The Second Circuit decision has changed the playing field. Members like Senators Leahy and Mike Lee and Representatives Jim Sensenbrenner, Robert Goodlatte, and John Conyers should be applauded for working incredibly hard to get the USA Freedom Act through Congress. Yet as a result of the Second Circuit decision, the USA Freedom Act's modest changes appear even smaller compared to the now judicially recognized problems with the mass collection of Americans’ records. We've supported the USA Freedom Act through all three iterations, more reluctantly each time, but with this new court opinion we’ve decided that Congress can significantly strengthen the bill if we are to support it.

The Second Circuit aptly compared the current debate to the troubled times of the 1970s. Two years ago Senator Leahy mentioned that his first vote in the Senate was for the Senate resolution that created the Church Committee. The Church Committee investigated the intelligence community for three years and ushered in the Foreign Intelligence Surveillance Act in 1978—one of the most robust surveillance reform bills ever. In that same speech, Senator Leahy vowed to "recalibrate" a failing surveillance system via the USA Freedom Act.

We urge Senator Leahy and others to draw upon the vigor of that first vote to push for a stronger reform bill. The Second Circuit’s decision mandates we not settle for less and that we strengthen the USA Freedom Act so it better protects our rights and freedoms.

Filed Under: nsa, patriot act, section 215, surveillance, usa freedom act
Companies: eff

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

from the we-deserve-better dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Seriously: how are these the people voting on this?

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

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

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

Rubio also went further in misrepresenting the program:

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

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

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

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

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

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

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

from the huge-win dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And then there's this lovely line:

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

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

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

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

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

And further on that point:

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

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

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

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

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

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

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

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

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

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

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

France And Canada Both Move To Massively Expand The Surveillance State

from the because-reasons dept

Just as we're (finally) having something of a debate in the US about at least rolling back some of the worst aspects of the PATRIOT Act and the surveillance state (though, not nearly enough), it appears that both France and Canada are moving in the other direction. In France, they're using the Charlie Hebdo attacks as an excuse for a massive surveillance expansion, that not only will lead to the government collecting and sifting through much more information, but with less oversight:

At a moment when American lawmakers are reconsidering the broad surveillance powers assumed by the government after Sept. 11, the lower house of the French Parliament took a long stride in the opposite direction Tuesday, overwhelmingly approving a bill that could give authorities their most intrusive domestic spying abilities ever, with almost no judicial oversight.

The bill, in the works since last year, now goes to the Senate, where it seems likely to pass, having been given new impetus in reaction to the terrorist attacks in and around Paris in January, including at the offices of the satirical newspaper Charlie Hebdo and at a kosher grocery, that left 17 people dead.

And then we see Canada doing the same thing:

Widespread protest and souring public opinion has failed to prevent Canada’s ruling Conservative Party from pushing forward with sweeping anti-terror legislation which a battery of legal scholars, civil liberties groups, opposition politicians and pundits of every persuasion say will replace the country’s healthy democracy with a creeping police state.

Prime Minister Stephen Harper is looking forward to an easy victory on Tuesday when the House of Commons votes in its final debate on the bill, known as C-51. But lingering public anger over the legislation suggests that his success in dividing his parliamentary opposition may well work against him when Canadians go to the polls for a national election this fall.

Despite widespread protests and concerns about both laws, the governments in both countries are just pushing forward , spreading FUD left and right to try to paper over why they need to absolutely destroy the privacy rights of the public. It appears that governments around the globe are seeing world events as a convenient excuse to ratchet up their own power, while taking away rights from citizens. In both countries, leaders supporting these measures talk about ISIS and "jihadi terrorism" and completely dismiss the complaints about a lack of oversight. However, in both cases, what little oversight there is of the new surveillance capabilities is very much of the rubber stamp variety. First, in France:

The only judicial oversight is a provision that allows the commission to lodge a complaint with the Council of State, but lawyers are dubious that they could be convened on a routine basis. The Council of State functions as a legal adviser to the executive branch of government and a supreme court for matters of administrative law.

And then in Canada:

Critics of the legislation say the imminent law gives Canadian spies sweeping new powers to investigate and disrupt broadly defined threats to public safety, with language that makes no distinction between terrorist plots and legitimate political protests and demonstrations. At the same time, it neglects to provide any increased oversight of the country’s vastly empowered chief spy agency, the Canadian Security and Intelligence Service.

Whatever happened to countries that respected liberty and freedom?

Filed Under: canada, france, mass surveillance, oversight, patriot act, surveillance

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

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

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

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

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

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

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

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

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

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

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

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

Jeb Bush Compliments Obama For Continuing And Expanding His Brother's War On Terror

from the HOT-THREE-WAY-SURVEILLANCE-ACTION! dept

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally…

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty…

It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

George Washington's Farewell Address, 1789

Not for nothing did Washington warn against the formation of political parties. In this country, bipartisan support can occasionally still be found for the innovative or the innocuous, but for very little else. Not that the parties are really that different. A lot of partisan opposition is predicated on nothing more than the "wrong" party pushing the legislation. There are sharp divides in terms of social programs and issues, but when it comes to funding the military, intelligence agencies and law enforcement, there's very little difference between the Democrats and the Republicans.

But the illusion of disparity still exists, even in these issues, and even when many on both sides are receiving similar funding from interested parties. So, it's a bit odd to hear a leading figure of one political party publicly praise the leader of another. Jeb Bush did just that, recently. He managed to toss President Obama a thumbs-up for one set of policy decisions.

Medved: If you were to look back at the last seven years, almost, what has been the best part of the Obama administration?

Jeb Bush: I would say the best part of the Obama administration would be his continuance of the protections of the homeland using the big metadata programs, the NSA being enhanced. Advancing this — even though he never defends it, even though he never openly admits it, there has been a continuation of a very important service, which is the first obligation, I think of our national government is to keep us safe. And the technologies that now can be applied to make that so, while protecting civil liberties are there. And he’s not abandoned them, even though there was some indication that he might.

Of course, he would say that. After all, Obama's approach to this area has been roughly the same as his brother's, George W. Bush. The 9/11 attacks opened the door for another endless war and all the government land grabs that went with it. Obama's tenure has only expanded on Bush's groundwork. There have been reforms mooted, but they're reforms Obama would never have considered if it hadn't been for Snowden's leaks. The reforms are mostly cosmetic and concentrate far too much on a program that even some intelligence officials have admitted is close to useless: the bulk phone metadata collections.

As Glenn Greenwald points out at The Intercept, even the farthest right of the Republican party have had generally nice things to say about his foreign policy decisions, seeing as they're the sort of things you'd normally expect the more-hawkish Red Staters to deploy: extrajudicial drone killings, indefinite detention and other areas where civil liberties have taken a back seat to national security.

If there's any place our government remains (mostly) united, it's the War on Terror. Government figures love government power and nothing makes the State "healthier" than a good, long war. Jeb Bush's by-proxy approval of his brother's programs isn't going to hurt his presidential chances with much of the party faithful. He might steer those concerned by the unchecked growth of the surveillance state towards his competition, however, what with Rand Paul promising to kill off the NSA's domestic surveillance programs shortly after delivering his inaugural address -- a promise I like in principal but am much less enamored with in terms of practicality.

In short, Jeb Bush's compliments are nothing more than a government figure telling the world that he likes government power. And the more it gets, the happier he'll be.

Filed Under: barack obama, jeb bush, metadata, patriot act, president obama, section 215, surveillance

Sen. McConnell Undercuts USA Freedom Act By Dropping Bill To Reauthorize PATRIOT Act Until 2020 Directly On The Senate Floor

from the keep-those-traitorous-reformers-in-line-and-all-that dept

In a little more than a month, elements of the PATRIOT Act are up for renewal. Among aspects being considered is the Section 215 program, an element which could suddenly disappear from the NSA's surveillance arsenal if the provision isn't re-upped yet again. (Or not. Wording in the most recent Section 215 authorization from the FISA court suggests it will just renew the order on June 1st unless it hears otherwise from Congress.)

With enough of a concerted non-effort, these provisions could simply expire. But there's no way this date comes and goes without a vote. PATRIOT Act renewals have generally faced minimal opposition, but this year there's a bit more uncertainty. A year-and-a-half of surveillance leaks has finally forced many legislators to confront what exactly they're authorizing in the name of national security. The leaks have led directly to numerous bills seeking to curb the NSA's domestic surveillance efforts. None have been successful to this point, but there's enough ill will out there that this renewal isn't the slam dunk it's been in previous years.

Obviously well aware of this increased opposition, Sen. Majority Leader Mitch McConnell has introduced a last-minute bill that would reauthorize the expiring PATRIOT Act provisions until the end of 2020. To ensure it gets to the floor before opposing bills or June 1st's expiration date, McConnell and co-sponsor Richard Burr invoked a Senate rule that allowed them to bypass the usual process -- namely its initial appearance before a Senate committee, which can then decide if the bill should move forward.

This allows McConnell and supporters to get a jump on Sen. Leahy's revamped USA Freedom Act, which is due to be presented to the Senate committee Wednesday. (McConnell presented his bill Tuesday night). Leahy isn't happy.

“Despite overwhelming consensus that the bulk collection of Americans’ phone records under Section 215 of the USA Patriot Act must end, Senate Republican leaders are proposing to extend that authority without change,” he said in a statement Tuesday night. “This tone deaf attempt to pave the way for five and a half more years of unchecked surveillance will not succeed. I will oppose any reauthorization of Section 215 that does not contain meaningful reforms.”

McConnell may not believe he has the votes necessary to push through a "no questions asked" renewal of these PATRIOT Act provisions, but his actions signal there's still a number of senators willing to grant national security agencies whatever they need, whenever they ask.

Filed Under: mitch mcconnell, patriot act, usa freedom act

Crunch Time For Surveillance: PATRIOT Act Renewal Vote Next Month A Key Metric In The Fight Against Surveillance

from the will-congress-wimp-out dept

In the nearly two years since the first of the Ed Snowden revelations, Congress has proceeded to carefully avoid fixing anything. There have been some votes that have come close, and some attempts to reform the program, but, in part because nothing gets through Congress, nothing has really happened. This is even though the author of the PATRIOT Act, Rep. Jim Sensenbrenner, has said that the Act is being misinterpreted to allow mass surveillance and while President Obama himself has called for the program to be changed (though he has failed to step up and stop it himself, even though he has the power to do so).

As we've mentioned a few times, however, much of this comes to a head in the next month and a half -- because Section 215 of the PATRIOT Act officially sunsets as of June 1st -- so if Congress doesn't pass legislation renewing it, the program dies. Admittedly, this is just one program -- and there are many other problematic programs that are covered by other parts of the law... but one thing at a time. A bunch of activist groups have gotten together to now launch a campaign looking to convince Congress to not renew Section 215 and you can (and should) use it to contact your elected officials.

Meanwhile, Trevor Timm has a good overview concerning what's at stake:

The massive phone dragnet is not the only thing Section 215 is used for though. As independent journalist Marcy Wheeler has meticulously documented, Section 215 is likely being used for all sorts of surveillance that the public has no idea about. There are an estimated 180 orders from the secret Fisa court that involve Section 215, but we know only five of them are directed at telecom companies for the NSA phone program. To give you a sense of the scale: the one Fisa order published by the Guardian from the Snowden trove compelled Verizon to hand over every phone record that it had on all its millions of customers. Every single one.

While the government claims that its other uses of Section 215 are “critical” to national security, it’s extremely hard to take their word for it. After all, the government lied about collecting information on millions of Americans under Section 215 to begin with. Then they claimed the phone surveillance program was “critical” to national security after it was exposed. That wasn’t true either: they later had to admit it has never stopped a single terrorist attack.

Of course, you may notice that even though this supposedly "critical" program is set to sunset in under two months there has so far been absolutely no debate whatsoever about the renewal. Don't be surprised. This is totally par for the course. Back in 2011 -- the last time these parts of the PATRIOT Act were extended -- there was no debate and Congress rushed it through with 74 Senators voting against even allowing a debate over the provisions.

Similarly, at the end of 2012, when the FISA Amendments Act was up for renewal, surveillance state defenders waited until the very end, and then insisted there was no need for debate. Senator Ron Wyden finally forced some debate by threatening to put a hold on the bill. And so, with just days to spare, the Senate held a very weak last minute debate in which a bunch of our elected officials made blatantly false or misleading statements -- peppered with the usual FUD about "terrorism! national security!" -- until the extension passed.

Things are at least a little different this time around, as the Snowden revelations have made this issue a bigger deal. But, history has shown that Congress will do almost anything to avoid debating the issue, and then at the last minute will scream about how we're all going to die if the program isn't renewed. Just watch: it's what's going to happen this time again. That is, unless enough people reach out to their Congressional Representatives and Senators to let them know this is unacceptable. The surveillance state hawks will always defend the program. And the civil liberties supporters will always fight against it. But there's a huge group in the middle that really hasn't taken a stand on this issue -- and it's imperative that they know that their constituents don't want them to continue supporting the NSA's mass surveillance programs.

Filed Under: bulk records, congress, debate, mass surveillace, nsa, patriot act, section 215, surveillance