New Trump Executive Order Says Federal Agencies Should Exclude Foreigners From Privacy Protections

from the immigrants-founded-this-country,-but-what-have-they-done-for-us-lately? dept

It's America first, everyone else second. That's the new administration's message. An executive order full of disturbing mandates contains a proposed rollback of privacy protections extended to foreign residents' personal information, as ProPublica's Julie Angwin pointed out on Twitter.

Here's the section detailing the clawback of privacy rights from President Trump's "Enhancing Public Safety in the Interior of the United States" executive order.

Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.

This doesn't appear to touch the Obama's Presidential Policy Directive issued in response to the Snowden leaks, which ordered US agencies to show a bit more respect to the personal information on foreigners harvested by multiple surveillance programs. The relevant part of PPD-28 reads:

All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information. U.S. signals intelligence activities must, therefore, include appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides.

What it never instructed agencies to do is stop collecting it, or to even scale their collection programs back. The solution isn't less spying -- despite the Snowden revelations -- but more policies. This is still intact despite Trump's executive order. He has the option of revoking previous Presidential Policy Directives, so it's not as though this extension of rights is untouchable.

The order basically states that government agencies no longer need to extend privacy protections to foreign residents' data that they may possess. The problem with this rollback is that it rolls back very little. Foreign data isn't covered by the Privacy Act. The president may have been targeting Obama's presidential directive with this executive order, but he has missed badly.

What it does do, however, is screw with the Passenger Name Record agreement the US signed with the European Commission back in 2007.

IV. Access and Redress: DHS has made a policy decision to extend administrative Privacy Act protections to PNR data stored in the ATS regardless of the nationality or country of residence of the data subject, including data that relates to European citizens. Consistent with U.S. law, DHS also maintains a system accessible by individuals, regardless of their nationality or country of residence, for providing redress to persons seeking information about or correction of PNR.

Then again, this was screwed with before the ink was even dry. The Bush Administration changed the terms of the deal less than two weeks later by stripping everyone -- US citizens and foreigners -- of these privacy protections by exempting the DHS's Arrival and Departure System, as well as the multi-agency Automated Targeting System from the Privacy Act.

The more disturbing part of the order is the installation of a Two Minutes Hate program for foreigners and any municipalities deemed to be "sheltering" aliens from the federal government.

To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

One would think it might be just as useful to collect information on domestic, US person-created "public safety threats" and make a "comprehensive list of criminal actions" committed by people who can't be expelled from the country. Presented without comparison, it will skew public perception, making it appear as though the main criminal force in the US is people who aren't here legally. (The order doesn't specify whether non-residence will be considered a "criminal action" worth listing in the report.)

On top of that, the order mandates the creation of an office that will cater solely to victims of criminal acts committed by non-US residents. It also orders the funding of additional personnel to man the borders and expedite the expulsion of non-residents. There's no stipulation for random testing of US persons' bodily fluids for dilution or impurities, but one assumes the nascent order will be undergo further alteration during rollout.

Filed Under: donald trump, executive order, foreigners, privacy, privacy act

Find The Big Fib In The NSA's Lack Of Concern For Foreigners

from the read-your-constitution dept

Usually, the NSA's whoppers are so ham-fisted everyone knows them for falsehoods. And if there's any question, you can usually rely on the fact that when the agency's lips move, it's stretching the truth so far that it's as good as a lie.

But from the start of Snowden's revelations, one of the NSA's tall tales has differed vastly from the others. It's so subtle and ubiquitous, such a consummate Big Lie, that even the surveillance-state's fiercest critics haven't spotted it.

Can you? Let's play Find the Fib with this testimony to Congress last June from Deputy Attorney General James Cole (though, to be fair, he doesn't state the Big Lie outright but only implies it in the phrases I've emphasized):

"[T]here's a great deal of minimization procedures that are involved here, particularly concerning any of the acquisition of information that deals or comes from US persons. As I said, only targeting people outside the United States who are not US persons."

Want another hint? Check out the letter Director of National Intelligence James Clapper wrote Sen. Ron Wyden, though he too merely implies the Big Lie:

"There have been queries … using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States … These queries were performed pursuant to minimization procedures approved by the FISA court and consistent with the statute and the Fourth Amendment."

Yep, those are my emphases again -- and I included "Fourth Amendment" because that's the biggest clue of all. Here's the text of that strangled, mangled, moribund member of the Bill of Rights:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Anyone see notation there about "US persons" and "non-US persons?" Yet for basically its entire existence, the NSA has pretended that the Fourth prohibits the government from searching American citizens without a warrant (not that that's stopped the spooks) while authorizing it to search the rest of the world willy-nilly.

But the Fourth's language is so clear that even Clapper should comprehend it: without a warrant, the government may not "violate" anyone's "person, house, papers, and effects." Whether he's Australian or American, from Utah or Uzbekistan, living in or visiting Mexico or Massachusetts is irrelevant.

"Wait a minute!" the NSA's bureaucrats sneer. "'People' is just a synonym for 'citizens.'"

Wrong. The Founding Fathers wrote "citizen" when that's what they meant (remember, most of these Dead White Men were fluent in Greek and Latin, which is to say they understood and used language precisely). And though they employ "citizen" eleven times in the body of the Constitution, they mention only "people" and "persons" in the Bill of Rights. For example, when delineating the requirements for election to the House of Representatives, the Senate, and the presidency, the Constitution specifies the minimum number of years each official must have been a citizen.

But when the Constitution concludes, and its amendments begin, "citizen" goes on hiatus. As you may recall from high-school history, the Anti-Federalists insisted on adding ten amendments to the Constitution, the partial list of liberties known as the Bill of Rights. Anti-Federalists distrusted and loathed government, even the Constitution's severely limited one: they eerily, accurately predicted today's creeping totalitarian state and tried to protect themselves with a written guarantee that the government would never restrict their speech, disarm them, spy on them, etc.

The Anti-Federalists also realized that politicians and bureaucrats powerful enough to silence, disarm, and spy on foreigners will certainly pull the same stunts at home. That's why the Bill of Rights consistently says "people," as in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The nationality of the government's victim doesn't matter: politicians and bureaucrats may not silence, disarm, or spy on, etc., anyone. Then, bingo, when the Bill of Rights ends and nationality becomes pertinent again in the Eleventh Amendment, "citizen" pops up like clockwork.

Of course, at this point, discussions of the Constitution are somewhat academic: our rulers have amply demonstrated their disdain for it and us. But, unlike Sen. Dianne Feinstein or German Chancellor Angela Merkel, we should be as livid when the Feds spy on others as when they spy on us. The Constitution clearly, adamantly prohibits both.

Becky Akers is the author of two novels, Halestorm and Abducting Arnold. Both are set during the American Revolution, when Peeping Toms were horsewhipped rather than handsomely paid to spy on citizens.

Filed Under: 4th amendment, constitution, foreigners, nsa, surveillance

Many Reasons Why The US Government Should Respect The Privacy Rights Of Foreigners Too

from the don't-mock-it dept

After Judge Leon's ruling against the NSA on Monday, Tim Worstall pointed out that the ruling really meant that the NSA could continue to spy on 6.7 billion non-Americans. This is a point that has come up a few times (especially from non-Americans). While we argue over these programs, much of the focus has been entirely on the issue of whether or not the NSA can spy on "US persons" or not, and much less attention has been paid to the question of foreigners. The basic argument there is pretty simple: the 4th Amendment applies to Americans. Everyone else isn't covered by that, and if they have a problem with the US spying on them, they should take the issue up with their government, who can take it up with the US.

Of course, reality is a lot more complicated than that. And that's partly why it was a nice surprise in the report from the White House task force reviewing these surveillance programs to not just focus on the privacy of Americans, but also on how it should deal with surveillance on non-US persons. There are a variety of details, but here's the executive summary version of what the report recommended:

Significant steps should be taken to protect the privacy of non-US persons. In particular, any programs that allow surveillance of such persons even outside the United States should satisfy six separate constraints. They:

1. must be authorized by duly enacted laws or properly authorized executive orders;
2. must be directed exclusively at protecting national security interests of the United States or our allies;
3. must not be directed at illicit or illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries;
4. must not target any non-United States person based solely on that person’s political views or religious convictions;
5. must not disseminate information about non-United States persons if the information is not relevant to protecting the national security of the United States or our allies; and
6. must be subject to careful oversight and to the highest degree of transparency consistent with protecting the national security of the United States and our allies.

We recommend that, in the absence of a specific and compelling showing, the US Government should follow the model of the Department of Homeland Security and apply the Privacy Act of 1974 in the same way to both US persons and non-US persons

This is actually a pretty big deal. Jennifer Granick, over at the Just Security blog does a good job explaining why this issue matters so much, and why those who insist that foreigners are on their own are missing the point.

Foreigners’ privacy is essential to American interests. We’ve learned that National Security Agency (NSA) practices which purportedly target foreigners nevertheless directly harm Americans’ privacy. This is because, as the Review Board says, “traditional distinctions between ‘foreign’ and ‘domestic’ are far less clear ... than in the past, now that the same communications devices, software, and networks are used globally by friends and foes alike.”

She goes on to describe how the NSA effectively uses some loopholes in the law to use this ability to spy on any non-US person to actually collect a ton of info on Americans as well. But it goes beyond that. It should be a fundamental recognition that treating others badly mean they're likely to treat you badly in return. Stomping all over the privacy of the rest of the world creates massive headaches for Americans as well, because it makes us all targets. Showing a modicum of respect for others makes it more likely that they'll show some respect back.

Granick highlights how not respecting the privacy of foreigners is clearly bad for US businesses, democracy and internet freedom:

...unfettered surveillance of foreigners is bad for U.S. business and a blow to free expression and democracy movements around the world. Without question, the role of Internet firms, especially those based in America, is a net plus for democracy abroad. Yet, unfettered spying has driven the EU to call for localization of services, which plays right into the hands of nations who want more control over the Internet within their own borders in order to censor, spy on, and control their citizens.

But I'd take it even further. Arguing that we can ignore the privacy of foreigners is akin to extreme (and economically illiterate) people who insist that "free markets" and "capitalism" mean that you should only look out for yourself, and not care about others. But that ignores the basic transaction costs in everyday life built around relationships and trust. People who always look out for themselves only, cut themselves off on the (massive) benefits of being able to work together to achieve more as a team. The same is true here, but on a larger scale. Arguing that we have no duty to care about the privacy of others leads us to a world in which we're pissing off 6.7 billion people that Americans need to interact with in a variety of different ways, both personally and in business, for no good reason at all.

It's a global society, and part of that means recognizing that you have to treat people beyond your borders with respect if you want any respect to come back to you. Recognizing that they have some basic rights to privacy seems like a good place to start -- and so it's great that the task force didn't ignore it completely.

The real question, though, is how the President and the White House will respond, and whether or not it will actually agree to such a proposal.

Filed Under: 4th amendment, foreigners, nsa, privacy, surveillance

President Obama Says He'll Rein In NSA... Then Proceeds To Praise And Defend Everything They've Done

from the not-very-convincing dept

In an interview on Thursday, President Obama said that he's going to propose some "self-restraint on the NSA" and to "initiate some reforms that can give people more confidence." Of course, he's the boss of the NSA. He doesn't need to "propose" anything -- he can order them to stop. Furthermore, it appears that nearly everything else he talked about was supporting the actions of the NSA, so it's a bit difficult to take seriously this idea that there will be any significant decrease in NSA activity.

"The challenge is...we do have people who are trying to hurt us. And they communicate through these same systems," Obama said. "And if we're going to do a good job preventing a terrorist attack in this country, a weapon of mass destruction getting on the New York subway system, etc., we do want to keep eyes on some bad actors."

"I want to everybody to be clear: the people at the NSA, generally, are looking out for the safety of the American people. They are not interested in reading your emails. They're not interested in reading your text messages. And that's not something that's done. And we've got a big system of checks and balances, including the courts and Congress, who have the capacity to prevent that from happening," the president added.

That's misleading to inaccurate, depending on your perspective. The checks and balances are not all they're cracked up to be, with everyone pretty much reliant on the NSA telling the truth, combined with the fact that many of those responsible for "oversight" are so close with the NSA that they're more co-conspirators than actual overseers.

Separately, can we drop this whole "they're not interested in reading your emails" bullshit? All people are saying there is "look you're a peon so shut up and deal with the fact that you have no privacy." That's ridiculous. Clearly the NSA is reading lots of people's emails (and getting data about them and what they do). While they might not make use of it today to spy on you in particular, that doesn't mean that it won't change in the future when suddenly you become "a person of interest" for whatever reason. It's easy for some people to think that the government won't ever care what they're doing -- but that can always change in a hurry and by the time it does, it's too late to start "worrying" about your privacy.

On top of that, recent revelations have made it clear that the NSA has no qualms at all about using information it gathers on non-terrorists that it doesn't like to try to destroy their lives. Sure, the NSA might not want to read your email today. But, piss off the wrong person tomorrow...

Separately, if they don't want to spy on me, let's make a simple deal then: stop doing it. It's hard to square this claim from NSA defenders that it's okay to spy on all of us because they don't want to spy on all of us. The right response is to stop spying on all of us. You want to go after the so-called "bad people," okay, then target those people but not everyone in hopes you might find some bad people mixed in there.

Oh, and once again, it's incredibly insulting how completely unconcerned the President and other NSA defenders seem to be about the rest of the world. Once again the message is basically: if you're not American, fuck you.

"The N.S.A. actually does a very good job about not engaging in domestic surveillance, not reading people's emails, not listening to the contents of their phone calls. Outside of our borders, the NSA's more aggressive. It's not constrained by laws," Obama said.

But it can be constrained by their boss, who happens to be the President. Will he actually do anything?

Filed Under: barack obama, foreigners, nsa, nsa surveillance