Bad Idea: President-Elect Biden Wants To Turn 1/6 Into The New 9/11

from the let's-not dept

Many of us watched in horror as Trump supporters -- encouraged by the outgoing President's insinuation that a "stolen" election could be overturned if VP Mike Pence was prevented from certifying election results -- raided the Capitol building in Washington, DC. What may have started as simple MAGA stupidity ended with five people dead and two improvised explosive devices recovered. Welcome to Leroy Jenkinsville, USA.

Invading federal buildings is a serious federal offense. That's why Trump sent federal officers to Portland -- officers that spent a lot of time shooting and pepper spraying journalists and legal observers. There was a lot of irony contained in the Capitol invasion by Trump supporters -- ones who feel the government can do no wrong when their boy is in charge but cannot be trusted the moment the guy up top is replaced.

But the most painful irony still lies ahead. An executive order from Trump signed in June was meant to target "anarchists and left wing extremists" who tore down monuments to Confederate "heroes" and otherwise menaced federal property. Now, it looks like the latest citizens to be hit with sentence enhancements will be the same people who cheered on this open targeting of people whose views were diametrically opposed to Trump's. "Fullest extent of the law" -- as ordered in the Presidential edict -- means pursuing maximum sentences for attacking federal property.

As horrifying as all of that was, the worst may lie ahead. The incoming president is threatening to turn January 6th into the next 9/11. (h/t Jameel Jaffer)

President-elect Joe Biden characterized the mob that stormed the U.S. Capitol on Wednesday as domestic terrorists, referring to the violence as “one of the darkest days in the history of our nation.”

“Don’t dare call them protesters,” Mr. Biden said in remarks from Wilmington, Del. “They were a riotous mob. Insurrectionists. Domestic terrorists. It’s that basic. It’s that simple.”

He's not wrong. Some of the acts -- especially the use of IEDs -- are the very definition of "domestic terrorism." The problem is what Biden wants to do about it.

Mr. Biden has said he plans to make a priority of passing a law against domestic terrorism, and he has been urged to create a White House post overseeing the fight against ideologically inspired violent extremists and increasing funding to combat them.

This may seem reasonable. And some renewed focus on the domestic side of terrorism might be warranted, considering how it's been back-burnered by law enforcement for, um, personal reasons. It's well documented that law enforcement agencies in the US -- including the FBI -- have ignored domestic extremists in favor of targeting people with darker skin and non-Christian faiths. Ignoring the domestic threat means not having to examine people law enforcement agencies have on their payrolls, far too many of whom have been caught espousing bigoted views in private.

But no matter how good it might feel to finally force law enforcement to confront people whose cognitive dissonance allows them to post ΜΟΛΩΝ ΛΑΒΕ memes alongside their Blue Lives Matter content, there's absolutely no reason anyone should welcome another expansion of government power under the guise of fighting terrorism.

The 9/11 attacks vastly expanded the government's reach and grasp. And it has resulted in a lot of domestic surveillance -- much of which uses the pretense of being "foreign-facing" to excuse its intrusion into the lives of Americans. For years, the NSA was able to harvest phone metadata in bulk, almost all of which was generated by domestic communications. Backdoor searches of NSA collections allow the FBI and others to obtain domestic communications without a warrant. And the FBI's war on foreign terrorism has done little more than allow the agency to radicalize people right into lengthy prison sentences.

Add to that biometric collections at airports, no-fly lists that are almost impossible to challenge, and the court-supported belief that the rights of American citizens are null and void anywhere within 100 miles of a border, coast, or international airport, and you have dozens of reason why no one should celebrate a new, entirely-domestic, War on Terror.

What happened earlier this month was disturbing. And domestic terrorism is a threat that should be addressed. But emotional lawmaking in the wake of an attack has never worked out well for Americans, even if many would applaud the punishment of people they don't like. America's law enforcement already has the tools, funding, and power to tackle domestic terrorism. They just need to start doing it. What they don't need is a whole new set of powers. And what Americans really don't need is less freedom and liberty, no matter what threat we're facing.

Filed Under: domestic terrorism, joe biden, patriot act, surveillance

Patriot Act Used By The FBI To Collect Internet Browsing Data, Contradicting Claims Made To Oversight

from the oh-no-this-must-be-the-first-time-the-IC-has-lied-to-its-oversight-[faints] dept

The NSA shut down its bulk phone records collection -- authorized under Section 215 -- after it became apparent it wasn't worth the effort. Reforms put in place by the USA Freedom Act prevented the agency from collecting it all and sorting it out later. Instead, it had to approach telcos with actual targeted requests and only haul away responsive records. The NSA somehow still managed to overcollect records, putting it in violation of the law. The NSA hinted the program had outlived its usefulness anyway, suggesting it had far better collections available under other authorities that it would rather not subject to greater scrutiny.

But this didn't end the government's bulk records collections. It just ended the phone metadata program. The NSA still collects other records in bulk, including banking records and, oddly, books checked out by library patrons. The broad authority of Section 215 could be read to allow the government collect other records, like email metadata and internet activity. Reasoning that people voluntarily create records of their internet use by using third-party services to surf the web, the government hinted it could sweep these up just as easily as it had swept up call records.

The government's attempt to collect internet history under this authority ran into some friction earlier this year when the Senate voted to block this collection. Senator Ron Wyden directly asked the director of national intelligence (DNI) to inform the Senate whether or not agencies under its purview had gathered internet use records under this authority. He received this answer.

In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records.

Wyden took this response to mean that implementing a ban on collection of internet history records could be put into place without negatively affecting any intelligence gathering activities. But when the New York Times pressed DNI John Ratcliffe on specifics, a new party inserted itself into the conversation: the DOJ. According to its response, the FBI had already done the thing the DNI had just told Sen. Wyden it hadn't.

In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.”

So, the FBI was collecting internet browsing records, albeit with an order that only targeted foreign users visiting one US web page. Still, this wasn't what the DNI originally said to Sen. Wyden. This set Wyden off. Again. The supposedly honest answer he received in response to his questions wasn't actually all that honest. As he pointed out in his statement, the belated admission raised questions about domestic surveillance and potential abuse of Section 215 authority to collect something the DNI said no one was collecting. And, if nothing changed, there was no guarantee the Intelligence Community wouldn't talk itself into believing a collection of internet browsing data would be cool and legal.

“More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

Previous attempts to erect a warrant requirement for the collection of internet data or search histories have failed to reach the president's desk. This latest admission has refueled the fire to protect Americans (or visitors to American websites) from government overreach. Even if such a collection targets only foreign internet users, there's no guarantee it won't sweep up US citizens -- like pretty much every other bulk collection has.

At this point, everything is up in the air. There's a new president headed into office who might be more receptive to reform efforts, but he's also the man who served the Obama Administration -- one that wasn't all that concerned about domestic surveillance until it became impossible to ignore the documents leaked by Ed Snowden. Even then, its response was tepid at best and it still allowed IC surveillance business to continue pretty much uninterrupted -- something it used to justify extrajudicial killings based on little more than metadata. This needs to be fixed, but surveillance reform advocates still lack majority support. And the guy headed to the White House has never seemed all that concerned about surveillance abuses.

Filed Under: 4th amendment, browsing data, bulk records, doj, fbi, fisa, fisc, john ratcliffe, mass surveillance, metadata, nsa, odni, patriot act, ron wyden, section 215, usa freedom act, warrant

A Mess In The House: Dirty Pool As Rep. Schiff Inserts Loophole To Help The FBI Spy On You

from the doesn't-the-4th-amendment-matter dept

As the debate continues over the renewal of some Patriot Act provisions for NSA surveillance techniques, the House now has a chance to correct a failure by the Senate, by one measly vote, to require a warrant for the FBI to go sifting through your internet histories that the NSA scooped up along the way. The intelligence community refuses to reveal how often this is done, but Senator Wyden is indicating that it's a lot more than you think -- and he's been right pretty much every time he's made those suggestions.

It's now up to the House, and while Rep. Lofgren had a version of the warrant requirement amendment, some petty political squabbling from Democratic leadership threatened to quash it -- mainly by Rep. Adam Schiff inserting a massive loophole to allow for more warrantless surveillance. Earlier on Tuesday it was reported that, after a long weekend of haggling, it appeared that a vote will be allowed on Lofgren's Amendment and that the language had been cleared up to the point that even Senator Wyden backed it:

“After extensive bicameral, bipartisan deliberations, there will be a vote to include a final significant reform to Section 215 [of the USA Patriot Act] that protects Americans’ civil liberties,” Lofgren, a Democrat of California, said. “Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant,” she added.

[...]

The Lofgren-Davidson amendment will require the FBI to obtain a warrant even if there’s only a possibility that the data it seeks is tied to a U.S. person. If the government wishes to access the IP addresses of everyone who has visited a particular website, it could not do so without a warrant unless it can “guarantee” that no U.S. persons will be identified.

Wyden's support was seen as critical, because if he felt that Schiff had torpedoed the Amendment he wouldn't support the amendment. So the original reports saying that he was on board, was a good sign. He even put out a detailed statement in support.

Then, the full language came out, and Schiff appeared to torpedo the whole deal anyway by telling the NY Times that the amendment didn't really do anything anyway:

But in his own statement, Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders "to seek to obtain" an American's internet information.

Soon after Wyden pulled his support of the bill, realizing that Schiff was making a ridiculous interpretation to allow for more spying on American's internet browsing habits:

“The House Intelligence Committee chairman’s assertion that the Lofgren-Davidson amendment does not fully protect Americans from warrantless collection flatly contradicts the intent of Wyden-Daines, and my understanding of the amendment agreed to earlier today. It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.

Again, however, I remain perplexed about Schiff trying to water this down. Remember, Schiff was literally the House manager of the Trump impeachment campaign, and more than anyone, Schiff has a front row seat to how this President has politicized all aspects of government at his disposal. You would think that's a good enough reason to pass a bill that would protect American citizens from being spied on by the FBI without a warrant (as, I should mention, the Constitution requires). Why would that be at all controversial? I get that Schiff comes from a background where he has traditionally had a kneejerk support for greater law enforcement and intelligence powers -- but given what he knows about this administration, it's crazy that he wouldn't want to restrict those powers in the hands of someone who still regularly seems to threaten his political opponents, including Schiff.

Of course, as all of this was happening, the President himself urged his supporters in Congress to vote against the bill anyway, so who the hell knows what's going on any more anyway. What is clear is that Congress had a real chance to make sure the FBI had to live under the 4th Amendment, and it appears that it has failed to do so, so far.

Filed Under: adam schiff, backdoor searches, fbi, fisa, nsa, patriot act, ron wyden, surveillance, zoe lofgren

Senate Talking Points Say Warrantless Collection Of Internet Use Data Keeps Terrorists From Killing Us

from the it-doesn't-say-HOW-it-does-this dept

The Senate tried and failed to erect a warrant requirement for the FBI's collection of US citizens' internet browsing data. The amendment to the FISA reauthorization fell one vote short -- something that could have been avoided by having any of the four missing Senate supporters show up and actually support the thing. The House has a chance to pass this amendment before sending the bill to the president, but they've decided to engage in some unproductive infighting instead.

As it stands now, it still stands the way it has always stood: the FBI can get this information without a warrant. If we can't have this amendment, maybe we can have some answers about the FBI's use of this power. Senator Ron Wyden has sent a letter to the Director of National Intelligence asking how often government agencies have spied on Americans' internet usage. The answer will probably arrive sometime between "years from now" and "never," given how enthused the DNI usually is about discussing domestic surveillance originating from the Foreign Intelligence Surveillance Act.

Since there doesn't seem to be any good reason to allow the FBI to continue this warrantless collection, surveillance supporters in Washington have decided to craft some bad ones. Dell Cameron reports for Gizmodo that certain Senators think a warrant requirement allows the terrorists to win.

Requiring federal agents to have “probable cause” to eavesdrop on the internet activities of American citizens poses a direct threat to national security and would force the FBI to stand by while terrorist plots unfold on U.S. soil, according to a leaked copy of talking points distributed to Senate lawmakers this month.

Those talking points appear to have originated in Sen. Mitch McConnell's office and began circulating prior to the Senate vote on the FISA reauthorization. The talking points aren't very convincing, though. As Cameron points out, they're riddled with legal errors and give the appearance that the author(s) believes ginning up a little fear should be all that's needed to sway legislators who still think the Fourth Amendment should mean something.

At one point, the document erroneously claims that legally requiring the FBI to get a warrant to view U.S. citizens’ web browser data would hinder federal agents from investigating a “known foreign” spy caught photographing a power plant on U.S. soil “over the course of several days.” In this hypothetical, the spy goes on to blow up the Hoover Dam as helpless FBI agents presumably observe from a distance.

Whoa if true. One wonders how the FBI ever manages to investigate anyone. Of course, at some point in the several days between the detainment and the eventual blowing up of stuff the FBI could probably have obtained a search warrant to collect this information. Not that it would necessarily need to since this hypothetical involves a "known foreign spy" the FBI already has under surveillance and whose internet data could be legally obtained from NSA collections without doing anything at all to the Fourth Amendment.

Somehow, the talking points manage to get even dumber than this.

Unbelievably, the leaked documents go on to claim that search warrants for browser data would effectively mean the end of all domestic internet surveillance by the U.S. government: “Internet web browsing and search history information comprise data that forms the building blocks for national security investigations,” it says. “To require probable cause for the Government to obtain the Internet data effectively prohibits any Internet data collection.”

Let's see if we have this straight: seeking a warrant will irrevocably terminate an investigation. Limiting the government to things it has probable cause to basically sets fire to the national security fabric, leaving us completely at the mercy of terrorists, domestic and otherwise. It's as if the person writing this believes Constitutional rights and protections are something the government only extends to violent criminals and if they're respected, the end result is dead Americans.

I guess we should be grateful for these Senators and their efforts. After all, if we, the general public, hadn't allowed terrorists to attack the US back in 2001, we wouldn't be in the position we are now: being warrantlessly surveilled by our own government for our own good.

Filed Under: 4th amendment, doj, fbi, fisa, mitch mcconnell, nsa, patriot act, probable cause, ron wyden, surveillance, terrorism, warrants

House Democrats Have The Power To Protect Our Web Surfing From Warrantless FBI Searching; Instead, They're Pointing Fingers

from the not-a-good-look dept

You would think that House Democrat leaders like Speaker Pelosi and Reps. Adam Schiff and Jerry Nadler, who helped lead the impeachment effort against President Trump, would leap at the chance to stop Trump and the FBI from conducting warrantless searches of Americans' internet browsing habits. Instead, they seem to be supporting it and are trying to scapegoat Rep. Zoe Lofgren -- who is trying to safeguard our internet surfing -- because she's dared to push for a fix to the law. At issue is the FISA renewal bill, in which Congress has decided to take the FBI's "backdoor searches" out of the backdoor and moved them around the front: explicitly allowing the FBI to go trawling through internet/browsing/search histories collected without a warrant by the NSA.

As we've discussed, over in the Senate, Senator Ron Wyden and Steve Daines pushed for a pretty straightforward amendment to say that these searches should require a warrant (yes, the 4th Amendment alone should require that, but... ) and their amendment fell just one vote short. So even though significantly more than half of the Senate voted to require a warrant, the bill that passed out of the Senate does not require a warrant. The ball then moved to the House side, and you'd think that leadership there should just put in a similar amendment -- and, indeed, Rep. Lofgren had one ready to go. This shouldn't be a surprise. Lofgren has fought to end backdoor searches for years.

However, a story in Politico argued that Lofgren's Amendment somehow threatened to "blow up" a well-orchestrated Congressional move to make sure the FBI could keep spying without a warrant. Dell Cameron, over at Gizmodo, breaks down just how ridiculous this whole story is, and how it appears that it's actually Speaker Pelosi and Rep. Schiff who want to let the FBI warrantless searches continue, and they've strong-armed Rep. Nadler into supporting this position (Nadler, who is terrible on copyright issues, usually is pretty good on civil liberties), while trying to pin any "blame" on Lofgren.

Much of the story covers shenanigans to box out Lofgren back in February when she sought to add her version of the Wyden/Daines Amendment:

A timeline of the negotiations shared with Gizmodo, which was compiled from notes and communication logs immediately after the story ran, shows that Lofgren and her allies had been pressing the Judiciary Committee about amendments to Nadler’s bill as early as February 10.

Requests to see the text were repeatedly denied, the sources said. The same FISA reformers reportedly reached out to the committee on February 12, saying that, if adopted in the form of amendments, parts of Lofgren’s bill would ensure that Nadler’s FISA re-authorization push was even more bipartisan. The Judiciary Committee reportedly turned over a draft copy of the bill the following day, but warned that “substantial revisions” were already in the works. About a week later, the updated text was still not available.

According to this timeline, the authors of the Lofgren-Davidson amendment would not see the final text of the bill until Friday, February 21. Minus the weekend, that gave staffers roughly 24 hours to work alongside legislative counsel to draft the amendment in a way that comported with Nadler’s bill. The Lofgren-Davidson amendment was finally handed over to the Judiciary Committee that Tuesday, a full 24 hours before the markup hearing, meeting the committee’s requirements.

And when Lofgren met that deadline... Nadler cancelled the markup, effectively blocking the amendment from a vote. And this wasn't for lack of interest:

One Republican staffer, who has direct knowledge of the negotiations, told Gizmodo that Nadler had effectively burned the Democrats by cancelling the markup hearing. The appetite for reform was certainly there, they said. Not only did the Democrat’s progressive wing and the libertarian House Freedom Caucasus support it, but many other Republicans, who’ve never shown interest in privacy reform, would have campaigned on curtailing the FBI’s authority.

It would have been useful in an election year, the staffer said, if only because President Trump has so frequently and publicly accused the FBI of breaking the law.

And so now that the bill is back on the House's plate, Nadler is the official roadblock to getting this amendment in, though it sounds like Pelosi and Schiff are putting on the pressure from behind the scenes.

Two Democratic aides said that the pressure on Nadler to kill the Lofgren-Davidson amendment was coming “from all sides,” and that cancelling the February hearing was probably not his own decision. Both staffers stopped short of fingering Pelosi and Schiff, but said that “House leaders,” including “other committee chairs,” were likely involved in that effort.

Questioning what it all means for the future of the Democratic party, which has long portrayed itself as the defender of Americans’ civil liberties, one Democratic aide said: “We need to look at ourselves and say, ‘Why on earth is the Senate the body that is producing the more progressive government privacy legislation and not the House?’ Why is that? I think the answer [requires] a long look in the mirror.”

Lofgren and others are now pushing to get their amendment back on the agenda, and it sure sounds like Schiff and Pelosi are trying to stop it, with Nadler -- whose public statements seem to indicate his support, but his actions show otherwise -- the key to actually making a decision.

I still find it bizarre that this amendment is even remotely controversial. First, it's just making it clear that the 4th Amendment applies. Second, if bad shit is happening, the FBI can still get a warrant. Third, both Democrats (stop Trump from abusing his powers) and Republicans (stop the deep state from surveilling Americans) have ready-made stories to explain their votes.

So what's the damn holdup?

Filed Under: adam schiff, backdoor searches, browser history, fbi, fisa, fisa renewal, jerry nadler, nancy pelosi, nsa, patriot act, surveillance, zoe lofgren

As Congress Looks To Give FBI Broad Powers To Sniff Through Your Browsing History Sans Warrant, Wyden Asks ODNI How Often It's Used

from the wyden-siren dept

The Wyden Siren is blaring. If you're unfamiliar, Senator Wyden has a pretty long history of what is generally known as Wyden Siren letters to the Director of National Intelligence. Wyden, one of the few Senators who has consistently shown a belief in protecting the civil liberties of Americans, has spent over a decade sending letters to the Director of National Intelligence that always ask questions about how often certain very sketchy surveillance techniques are being used. And, every time he does so, it tends to be a signal that the method in question is used to a massive degree, while the intelligence community is running around insisting that it's nothing to be concerned about. If we've learned one thing, however, in all these years, it's that when Wyden asks these types of questions, it means you'd best pay attention, and the activity in question is happening way more than anyone thought before.

The latest, as first spotted by Zack Whittaker, is Wyden's letter to Acting Director of National Intelligence, Richard Grenell asking about how often the intel community and the FBI use their powers to spy on web surfing behavior:

Current law requires the DNI to report publicly on the number of targets of Section 215 collection and the number of "unique identifiers used to communicate information" the government collects. In its annual Statistical Transparency Report, the Office of the Director of National Intelligence has used email addresses as an example of a "unique identifier." While this may help put into context the scale of the government's collection of email communications, I am concerned it does not necessarily apply to web browsing and internet searches. This ambiguity creates the likelihood that Congress and the American people may not be given the information to realize the scale of warrantless government surveillance of their use of the internet. I therefore request that you respond to the following questions:

How would the government apply the public reporting requirements for Section 215 to web browsing and internet searches? In this context, would the target or "unique identifier" be an IP address?

If the target or "unique identifier" is an IP address, would the government differentiate among multiple individuals using the same IP address, such as family members and roommates using the same Wi-Fi network, or could numerous users appear as a single target or "unique identifier"?

If the government were to collect web browsing information about everyone who visited a particular website, would those visitors be considered targets or "unique identifiers" for purposes of the public reporting? Would the public reporting data capture every internet user whose access to that website was collected by the government?

If the government were to collect web browsing and internet searches associated with a single user, would the public reporting requirement capture the scope of the collection? In other words, how would hte public reporting requirement distinguish between the government collecting information about a single visit to a website or a single search by one person and a month or a year of a person's internet use?

The context of all of this, of course, is the effort going on in Congress right now to renew various surveillance authorities for the NSA (which the FBI also gets access to via "backdoor searches" that require no warrant). Wyden has been pushing back against those kinds of backdoor searches for years, and in response, those putting together the renewal package seem to have decided that they should just move the backdoor to the front door, and give the FBI more explicit power to search through your browser history and internet searches (as collected by the NSA) without a warrant.

Wyden, of course, put forth an amendment to require a warrant for such searches, and that amendment fell short by just one vote. So even though at least 59 Senators think there should be warrants required for the FBI look through your browsing history, the bill still allows it (and is currently being debated in the House).

Of course, the reality here is not much of a surprise. If Grenell responds at all, any substantive response will be given in a private, classified way that means the public will not find out the answers to most of these questions. But take it from someone who has been reading these letters for many years now: each of those questions reveals exactly what the answer is almost certainly going to be. The FBI's warrantless backdoor searches of your internet surfing habits is likely to be much broader and more widespread than most people expect. And it's likely that if your IP gets snarfed up in a search, it means that they can look through not just your web surfing, but everyone who shares the network with you. Without a warrant.

Even in a normal time this should be a huge scandal. But it never is because no matter which President is in charge, it seems like they all agree that warrantless surveillance of Americans is important and should be expanded. But it's particularly ridiculous in these times, when you have a large chunk of Congress that has no reason to believe the DOJ won't abuse its powers for partisan political purposes, and the other large chunk of Congress insisting that the evil "deep state" FBI has been illegally spying on them and their friends.

Under such conditions, it should be fairly obvious that Congress should slap a warrant condition on any slurping up browsing history. And yet, that's just not happening.

Filed Under: 4th amendment, backdoor searches, browser history, fbi, fisa, nsa, odni, patriot act, renewal, richard grenell, ron wyden, warrants, wyden siren

Senate Passes Surveillance Reauthorization Bill 80-16 -- One Stripped Of Almost All Of Its Reforms

from the but-at-least-we-get-an-official-burial-of-the-bulk-phone-records-program dept

The Senate voted today to give us five more years of pretty much unaltered surveillance. The reauthorization of key spy powers is back on again, after Congressional inaction ran head-on into a global pandemic, allowing these to (briefly) expire. Not that this temporary expiration resulted in any less surveillance. And with this overwhelming vote in favor of resumed spying, it will probably only be a matter of days before a consolidated bill ends up on Trump's desk. Despite his continual agitation against the "Deep State," Trump is expected to give these powers his official blessing.

The Senate on Thursday overwhelmingly voted to reauthorize three national security surveillance authorities that have been expired since March.

The chamber voted 80-16 to extend the surveillance authorities under the Foreign Intelligence Surveillance Act.

The vote occurred after the Senate adopted a bipartisan amendment on Wednesday from Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick Leahy of Vermont to provide additional legal protections in the FISA court for targets of surveillance warrants. The Senate's amendment means the House will have to pass the new version of the legislation before it goes to the President's desk.

The additional protections in the amendment would expand outside review of FISA surveillance cases. The USA Freedom Act allowed for the appointment of amicus curiae (outside, neutral advocates) at the court's discretion. This amendment makes it a bit more mandatory, requiring the court to appoint one in any case involving "sensitive investigative matters." That covers a lot of ground, but the amendment was written with the targeting of US persons in mind.

More importantly, it grants the amicus the power to raise any issue at any time and gives them access to all pertinent court documents, including underlying warrant applications.

Unfortunately, this bill moved forward without stronger surveillance reforms, including an amendment written by Senators Ron Wyden and Steve Daines that would have added a warrant requirement for the collection of internet browsing history and search data. This fell one vote shy of passing -- something that any of the four missing senators that supported the amendment could have fixed by showing up and voting.

The Senate's approved version reauthorizes authorities affected by 2015's USA Freedom Act and parts of Section 215, like the infamous "roving wiretap" authority and the apparently never-used "lone wolf" provision that allows for the surveillance of people with no known ties to any terrorist group.

If it remains intact before passage, the bill would also formally end the NSA's bulk phone data collection. The NSA voluntarily retired this after it was unable to avoid over-collection even while having to approach telcos directly with reasonable suspicion-supported requests for call records. Having gone from mostly useless to completely useless, the NSA decided this collection was no longer worth the compliance headache. For whatever reason, the FBI fought to keep this zombie program alive, claiming that the slim possibility of it being useful as some undetermined point in the future justified its continued existence.

We'll have to see what survives the House's second pass before it heads to Trump for a signature. That's the version that's had plenty of input from Bill Barr, who apparently wants as much surveillance power as possible even as the Commander-in-Chief complains about the abuse of these powers to target him and his.

Filed Under: fisa, patriot act, reauthorization, senate, surveillance

Even As The GOP Whines About Illegal 'Deep State' Surveillance, It's Preparing To Give More Surveillance Powers To The FBI

from the fucking-hypocrites dept

We've been pretty critical of federal surveillance powers going back, well, as long as we can remember. And while Trump's biggest supporters like to insist that FISA warrant abuses were some sort of new thing that were just used against his campaign in a politically motivated manner, the reality is that it's just been standard operating procedures for the FBI to abuse the same "backdoor warrants" that were first revealed in 2013, but go back years before that. While, yes, the problems with the Carter Page surveillance were concerning, they were no more concerning than tons of other crap the FBI has done in making use of so-called backdoor warrants to surveil tons of Americans without cause.

Indeed, just this morning we were writing about how the FBI couldn't even bother to meet the most basic procedural requirements regarding the use of these backdoor searches, and violated the Constitution over and over and over again in sniffing through this huge corpus of data.

Now, you might hope that even as we've had a new rash of misleading "deep state" complaints from Trump and his fans over the past few days, the government might actually look to pull back on the authorities granted to the DOJ/FBI to spy on Americans this way, but it appears that (of course) the opposite is happening. A draft bill to renew FISA powers would expand the FBI's ability to conduct warrantless backdoor surveillance of Americans by snarfing their way through NSA collections of data.

Indeed it appears that, rather than enabling these backdoor searches through, let's just say, creative interpretation of the words in the law, the new amendment would explicitly allow such searches.

Under cover of redressing what President Donald Trump and his allies call the FBI’s “witch hunt” over collusion with the Kremlin, McConnell, via an amendment to the PATRIOT Act, will expressly permit the FBI to warrantlessly collect records on Americans’ web browsing and search histories.

As always, Senator Ron Wyden is sounding the alarm:

“Under the McConnell amendment, Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation,” said Wyden, who has been trying to ban warrantless surveillance on such records.

It's no surprise that the DOJ/FBI want to retain these powers, and it's even less of a surprise that Attorney General Bill Barr, who has done more to politicize the DOJ than any Attorney General in decades, wants such easily abused surveillance powers. But it does make it quite clear that those who have been whining and complaining about the "deep state", and talking about how unfair it is that Trump officials were subject to FBI surveillance, are generally full-of-shit hypocrites.

Filed Under: 4th amendment, backdoor searches, deep state, doj, fbi, fisa, mitch mcconnell, nsa, patriot act, surveillance, warrants

Congress Let Spy Powers Expire Last Month, Which Is Having Almost No Effect On Current Spying

from the hey-you-guys-need-to-knock-it-off-whenever-it's-convenient-for-you dept

Thanks to the goddamn everything else going on in the world right now, we've now learned what happens when Congress lets surveillance authorities expire. Nothing, really. Here's Charlie Savage for the New York Times.

House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The authorities created by the US Patriot Act -- specifically, the bulk collection of business records and roving wiretaps -- both expired on March 15th. More pressing issues backburnered the reauth, which is probably preferable to the alternatives: a blanket reauthorization rush job or some rights-wrecking abomination tacked onto a must-pass coronavirus response bill.

But letting these authorities expire doesn't change much of anything, especially since the FISA Court is presumably on limited duty like other courts in the nation while waiting for the pandemic curve to flatten a bit. It's still business as usual for any surveillance business in progress before the March 15th cutoff, as Julian Sanchez explains.

A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

“The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date,” Mr. Sanchez said.

This means agencies can initiate surveillance using these expired authorities so long as they backdate the impetus for the investigation. We're in the midst of a never-ending War on Terror, so any targets loosely associated with the terrorist networks we've targeted for decades will remain surveilled under expired authorities. And that will continue up until Congress gets around to actually reauthorizing the surveillance that never stopped.

In practice, this means all sorts of surveillance is continuing without explicit Congressional permission. But that's the way the law was written. The escape hatch says nothing needs to stop even when nothing governing surveillance says it's alright to keep going. Securing the nation is too important to be left in the hands of three branches. Congress has cut itself out by not handling the reauthorization in a timely manner. And the FISA Court can't do anything about since it's forced operate (and authorize) in the void Congress created.

There's a lot of power in play here and it's being handled irresponsibly. Just when the FBI has shown it can't be honest with the FISA Court (and hasn't been for most of two decades), no one's stopping anyone from doing anything, much less instituting needed reforms. While tackling the virus may have been the more important job, it's disheartening to know there's really no expiration date on surveillance authorities, no matter what might be said in Congress during these periodic battles over domestic surveillance.

Filed Under: fbi, fisa, fisa court, fisc, patriot act, section 215, surveillance

NYPD Lied About National Security During An Attempt To Obtain A Journalist's Records From Twitter

from the IN-CASE-OF-REALLY-REALLY-WANTING-SOMETHING,-BREAK-GLASS dept

This is a lie. There's no way around it. I'm sure the NYPD will come up with some excuse for this, but it will probably take a lawsuit to obtain the underlying documents, if not the NYPD's internal justifications.

This all started with shooting in New York City. NY Post Police Bureau Chief Tina Moore obtained -- and tweeted -- graphic crime scene photos apparently leaked by an NYPD employee. Rather than limit itself to investigating the leak internally, the NYPD decided to drag the reporter into this.

The subpoena to turn over documents, provided to The Post by Twitter, directs the social media company to produce all device and contact information associated with the user handle @Tinamoorereport, as well as all the handle’s connection history between Oct. 9 and Oct. 14.

During that time, Moore obtained and tweeted a gory crime scene photos from a dice-game shooting in Brooklyn that left four dead and three injured. Those photos appear to be at the center of the NYPD subpoena.

This isn't just sort of wrong. This is very wrong. The state's shield law explicitly says this sort of thing isn't allowed.

New York’s Shield Law codifies the privilege, arising under the First Amendment, that protects professional journalists from compulsory disclosure of confidential sources contacted or materials obtained in the course of gathering information for public dissemination.

Under New York law a professional journalist is defined as one who is engaged in “….gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public…”

Maybe the NYPD thought it wasn't breaking the law because it sent the subpoena to Twitter, rather than to the journalist. Maybe the NYPD just didn't care. Either way, the state's law shields Moore from these demands for information. If the NYPD has a leak problem, it needs to handle it without threatening First Amendment-protected activities.

But it somehow gets worse. The NYPD cited two authorities in its subpoena [PDF]. The first is somewhat redundant: Section 14-137 of the New York City administrative code simply gives the NYPD the power to issue subpoenas. The second citation, however, makes no sense. And it's this citation that makes it a lie.

See also USA Patriot Act, P.L. 107-56, Section 211 codified at 47 USCS Section 551(c)(2)(D).

This isn't a terrorism case. This is a standard shooting case not tied to any suspected terrorist activity. But it appears the NYPD thought throwing that on the form would maybe allow it to gather all of the following with minimal protest from Twitter:

any/all detailed subscriber, profile, contact, billing and payment information; any/all associated email account(s)/ screen name(s)/ user name(s)/ domain name(s); any/all associated ISP/ESP provided or externally based storage account(s); any/all SERVER, CM, CPE, DHCP, GUID, FTP, IIS, Twitterpic address history and connection logs; any/all MAC or IP address history, length of service and connection logs related to this request for the account(s), subject(s), and any associated electronic device(s) using the following Twitter user name: @TinaMoorereport

It's a fishing expedition designed to give the NYPD additional entities to throw subpoenas at, presumably with the same nonsensical reference to the Patriot Act attached. It's unclear whether Twitter handed over this info. Whatever the case, it has actually made the pro-NYPD New York Post a bit less supportive of New York's Finest. An op-ed from the paper's editorial board says the NYPD should know better than to go after a journalist's sources… and it definitely shouldn't do this while pretending a normal shooting was somehow related to national security.

Unfortunately, the NY Post can't bring itself all the way around on the issue, which results in the incongruity of a city paper seeing actual abuse of a law it loves but still refusing to criticize the abused law.

We’ve been firm supporters of the Patriot Act from the start, even as its critics have warned that law enforcement would seek to abuse such extraordinary powers by applying it to cases that have nothing to do with national security.

Now the NYPD — or its lawyers — has just given those critics some powerful fodder, undermining a law that helps keep this terror-target city safe.

Yes, people who abuse easily-abusable laws are bad. But bad laws that lend themselves to abuse are bad too, whether or not anyone gets around to abusing them. That's the hard truth the Post will have to face at some point. But I guess the wholly-unjustified targeting of one of its reporters isn't the "road to Damascus" moment it's looking for.

Filed Under: 1st amendment, abuse, leaks, nypd, patriot act, shield law, subpoena, tina moore
Companies: ny post