Senators: Why Is Everyone So Worked Up About Verizon Spying? We've All Known About It Since 2007

from the uh... dept

Towards the end of my piece this morning about the administration's ridiculous response to the leaked evidence and confirmation that the NSA is scooping up every single phone record (confirmed from Verizon at least, though you can assume it applies to everyone else as well) was a quick note mentioning that Senator Dianne Feinstein was saying that this was a continuation of the same program that had been going on for seven years. And, now, lots of Senators are coming out and saying the same thing. In fact, it appears that our 100 Senators all knew that this has been going on for seven years without telling us:

"Everyone's been aware of it for years, every member of the Senate," said Sen. Saxby Chambliss (Ga.), the ranking Republican on the Senate Intelligence Committee.

Chambliss told reporters that the program has been going on for seven years under the auspices of the Foreign Intelligence Surveillance Act. He said he was not aware of a single citizen filing a complaint about it.

I love that last bit. Yes, since no citizens "complained" about the totally secret program in which their private data was sucked up by the NSA, what's there to worry about? Senator Harry Reid's response is equally ridiculous, suggesting that everyone should calm down because this is nothing new:

"Right now I think everyone should just calm down and understand that this isn't anything that's brand new -- it's been going on for 7 years," Reid said.

Again, it's astounding how out of touch these people are. They're pretending that a secret program that went way, way, way beyond what most people believed was happening now being revealed is no big deal because they knew about it for seven years? Frankly, that makes the whole situation that much worse, because it means they supported it and did nothing to end it for seven years.

I know that Senators Ron Wyden and Marc Udall have been trying to get this fact out to the public for years -- demanding that the NSA say how many Americans they were spying on. It was obvious that Wyden and Udall knew what was going on, but couldn't say anything since such information is "classified." But shame on every other Senator for not standing up against this.

Some are arguing that they didn't know:

"If you're on the intel committee, or if you're in leadership, you might have been briefed. I'm pretty good about attending meetings; I don't remember being briefed," said Sen. Johnny Isakson (R-Ga.). He said he voted for the FISA reauthorization and the Patriot Act but did not intend to grant authority to collect millions of phone records at a time.

"I never voted intentionally for any bill that would grant blanket [authority] to just monitor every phone call," he said.

But that's a lame excuse as well, because Senator Wyden spent an awful lot of time making this very point on the Senate floor, pointing out that very clearly that the NSA was using FISA to spy on tons of Americans (hinting strongly that it was all of them) and saying that the Senate shouldn't approve the reauthorization until the NSA told them how many people were being spied on. If Senator Isakson didn't pay attention to Senator Wyden ringing the alarm bell, that's his own fault.

Filed Under: dianne feinstein, henry reid, johnny isakson, marc udall, privacy, ron wyden, saxby chambliss, senate

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

from the fingers-in-ears-approach dept

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

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

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

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

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

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

from the wtf dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ: Secret Interpretation Of PATRIOT Act Just Like Grand Jury Subpoena If You Ignore 'Factual Context'

from the these-are-not-the-legal-interpretations-you're-looking-for dept

A couple months ago, Senators Ron Wyden and Marc Udall -- who have been banging the drum about the feds' secret interpretation of provisions of the PATRIOT Act -- asked the Justice Department to stop claiming it wasn't a secret law. The DOJ, in the form of Assistant Attorney General Ronald Weich, has responded (embedded below) and the response can be summarized as:

There is no secret law, it's just a classified interpretation of a public law.

As if that's any different? The DOJ defends all this by saying:

To be sure, the FISA Court opinions and orders relevant to the use of section 215 and many other intelligence collection authorities are classified. This is necessary because public disclosure of the activities they discuss would harm national security and impede effectiveness of the intelligence tools that Congress has authorized. This is true of many other intelligence activities that our government throughout its history has carried out in a classified manner in the interest of national security. Since it is not possible to disclose these activities to the public, Congress established the Senate and House intelligence committees to ensure that Congress is able to perform its proper oversight role on behalf of the American people.

Sounds nice, but it's actually ridiculous. No one is asking the DOJ to reveal its intelligence activities. They're asking it to reveal its secret interpretation of the law. Even if we grant the claim that activities should be classified, the interpretation of the law should never be secret.

The DOJ also claims that since the intelligence committees are briefed on its secret interpretation, and the PATRIOT Act extensions keep passing anyway, that's proof that Congress is fine with the secret interpretation. Of course, as Wyden has pointed out on the floor of the Senate in the past, the problem is that the vast majority of Congress has no idea how the DOJ is actually interpreting the law. They're basing the extensions on the plain reading of the law, and the obvious implication is that the DOJ is interpreting the law way beyond what the text appears to say.

Finally, at the end of the letter, Weich tries to suggest that the info the DOJ scoops up under the PATRIOT Act really isn't that different than what a federal prosecutor can get under a grand jury subpoena process, and in fact claims that the standard under the PATRIOT Act is higher, but then at the very end states that "the factual context" in which the PATRIOT Act is used may be different than "ordinary criminal matters." Uh, isn't that the whole point? The "factual context" is the difference between legal and illegal. Driving sober and driving drunk are analogous, other than the "factual context." Withdrawing cash from a bank and robbing a bank are analogous, other than the "factual context." Selling insurance and extorting payments are analogous, other than the "factual context." In other words, the "factual context" is pretty key here, as it's the entire difference between legal and illegal.

Is it any wonder that the DOJ wants to hide that factual context?

Filed Under: doj, factual context, interpretation, marc udall, patriot act, privacy, ron wyden, secret law