Massachusetts Supreme Court Being Asked To Decide Whether Cops Can Engage In Warrantless Surveillance Of Social Media Users

from the cops:-we-of-course-we-can-because-no-one-has-told-us-we-can't dept

The top court in Massachusetts is asking itself (and legal counsel representing both sides) questions that -- on the surface level -- don't really appear to be that difficult to answer. Here's how Thomas Harrison sums it up for Courthouse News:

The Massachusetts Supreme Judicial Court struggled Wednesday to figure out whether police can use trickery to conduct unlimited surveillance of social media accounts even if they have no reason to think that anyone did anything wrong.

I mean, phrased that way, it seems like this should be a "no." Should the government be able to surveill people suspected of nothing? What else could the answer be in this particular nation with this particular Constitution? And yet, the discussion continues because it's not quite as simple as that.

The government, however, sees this supposedly easy question and says "Yes." The government seems to think it's just that simple, even when it's pointed out that it's not quite that simple.

“The breadth of this is what is worrisome,” Justice Scott Kafker complained to Boston-area prosecutor Ian MacLean. “I get that cops are doing this to detect kiddie porn, but you’re saying they can just go out on social media exploring. You may be right, but it’s concerning that they can just go through people’s social media and go hunting. You’re saying they can do that, right?”

“Yes,” said MacLean, an assistant district attorney for Suffolk County. “In the same way cops can approach random people on a street corner.”

Yes. Cops can approach random people. A cop can walk up to anyone and start asking questions. No one's obliged to stick around but it's true cops can just hassle people without violating the Constitution. If they want to really dig into their doings, they need more. And comparing approaching random people to peering through their online lives is an analogy that only works if you also believe cops can rifle through whatever mail that random person might be carrying or page through their address book to see who they know and spend time with. And yes, those comparisons are as outdated as this simplistic attempt to turn long-term eavesdropping on social media into something as harmless as idle queries from cops who apparently have nothing better to do.

Here's what was actually happening, as described in an amicus brief [PDF] filed by the Massachusetts Association of Criminal Defense Lawyers.

The Boston Police Department has created and used an unknown number of accounts on Snapchat, a social media platform, to lure users into accepting their “friend” requests, so that the police can electronically surveil and record private communications sent by those users to their Snapchat friends. The police have done so with no judicial oversight; no probable (or frankly any) cause; and no constraints on what they will surveil or record, or how long their surveillance will last.

So, this isn't like approaching random people. This is more like an undercover cop hanging out at a house party. Subterfuge is involved, which is generally something necessary in criminal investigations with targeted suspects. And cops apparently believe subterfuge is acceptable, even when doing nothing more than trawling social media services looking for a bite. Courthouse News points to this long-standing belief there's nothing wrong with refusing to comply with platforms' terms of use:

A study back in 2014 revealed that 81% of police officers use social media in investigations, and 80% think it’s ethical to create fake accounts to get a suspect to friend them.

In this case, it's the Boston PD using fake Snapchat accounts to eavesdrop on communications senders likely presumed were private. And officers do it all without training, supervision, or oversight.

Other Boston police officers also use Snapchat as a part of their police work, despite the fact that none have been trained on how to use it. [...] There appear to be no policies or even supervision governing these warrantless, suspicionless electronic surveillance efforts by police.

And here's how that played out in this case:

Before gaining access to the defendant’s “Frio Fresh” private Snapchat account, the police officer did not even know that the account belonged to the defendant. After gaining access to the account -- using what the court assumed was a fake name intended to “resonate with the audience he was attempting to try to . . . snoop on,”-- the officer was able to use the content of the defendant’s private Snaps, which included an undisclosed number of videos and photographs, to identify the defendant as the account owner. For one month, the officer reviewed the content of every communication sent by the defendant to his private friend network without any judicial supervision and without any limitation on the scope or length of the surveillance or which communications he could record.

And that would seem to be a clear violation of constitutions, both national and local.

Article 14 and the Fourth Amendment preclude the police from unilaterally listening in on private telephone calls, sticking electronic devices on walls or in cars, or generally using new technology to learn what would otherwise be unknowable without the investment of substantial investigative resources. In addition, Articles 1, 10, and 16, and the First, Fifth, and Fourteenth Amendments, protect our fundamental rights as citizens of a free democracy to freely associate and speak together, and enjoy due process and the equal protection of our laws -- rights that are severely threatened by the police action in this case.

And yet the Supreme Judicial Court thinks it still may be ok for cops to engage in suspicionless, warrantless, long-term surveillance. Its arguments seem to boil down to a definition of privacy that relies heavily on a person's online popularity. If someone broadcasts a message to enough people, the expectation of privacy dissipates.

Justice Serge Georges objected that “a really big wedding isn’t a public wedding, but if an account owner indiscriminately accepts people and has 1,000, 2000 or 3,000 friends, at what point does it become absurd to say there’s a reasonable expectation of privacy?”

We'll have to see how this is resolved. The government apparently believes anyone with over 100 followers is fair game, even if investigators don't have any articulable reason to eavesdrop on these conversations. While there's little dispute that public posts on social media are fair game, private messages sent to others (even hundreds of others) aren't visible by those who haven't been invited to in-group. That may be the distinction that matters. If cops want to go "undercover" to listen in on non-public conversations between social media users, they probably should have something more to justify these activities with than "because we can."

Filed Under: 4th amendment, massachusetts, police, social media, warrantless surveillance

DOJ Headed By William Barr Asked To Explain Warrantless Bulk Data Collection William Barr Authorized 27 Years Ago When He Was The Head Of The DOJ

from the DOJ's-timeline-has-become-a-flat-circle dept

More than a quarter-century ago, then-Attorney General William Barr gave the DEA something it shouldn't have had and something it certainly hadn't earned. The War on Drugs was a forever war and it demanded an expansion of the government's powers. AG Barr OK'ed it: the warrantless bulk collection of multiple third party records, including call records, banking information, and the tracking of purchases.

Twenty-seven years after the fact, the DOJ's Inspector General released its review of these programs, finding they had been crafted and deployed with no underlying legal basis. Some of these programs are defunct. Others have been codified into quasi-legitimacy by War on Terror-related government power expansions.

Twenty-seven years later, William Barr is Attorney General once again. And he's likely just as interested in expanding law enforcement surveillance programs (without worrying too much about how legal they are) as he was three decades ago. He has shown no love for the public nor their rights since he took office, making it crystal clear that neither the administration he works for nor the law enforcement agencies he oversees should be questioned by other branches of the government, much less the public they're supposed to be serving.

More questions are on the way, though. Senator Ron Wyden and Senator Pat Leahy want some answers from the DOJ about Barr's past legal misadventures and what he's doing now to address the findings of the long-delayed Inspector General's report.

“Mr. Barr’s authorization of this sweeping surveillance program without requiring, at minimum, an appropriate legal analysis, was not consistent with his oath to support and defend the Constitution and it likely amounted to professional misconduct,” Wyden and Leahy wrote. “Attorney General Barr knew, or should have known, that neither statutory law nor federal case law permitted the DEA to sweep up, in bulk, billions of records of Americans’ telephone communications. We write to ask that you open an investigation into the authorization of this recently-disclosed illegal, bulk surveillance program that collected billions of records of Americans’ telephone calls without conducting any legal analysis of the program.”

The program Barr authorized ran for more than 20 years, finally being mothballed in 2013 following the Snowden leak exposing the NSA's bulk phone records collection. The collection continued past that point, but was modified significantly, at least according to the DOJ's public statements. The Senators want specifics. Their letter [PDF] asks for details about the long-running program Barr summoned into existence for President Bush the First.

1. During the two decades in which the DEA operated Program A, did any telecommunications companies ever raise questions about its legality, refuse to comply with a DEA subpoena for bulk data, or seek judicial review?

2. According to the OIG report, the DEA transitioned in 2013 from collecting bulk records under Program A to requesting records about specific targets. What legal analysis, if any, did DOJ and DEA engage in before beginning this reconfigured surveillance program? If no legal analysis was conducted, why not?

3. Under target-specific data collection operations, DEA officials must now provide "reasonable articulable suspicion" that the target is involved in drug activity.

a. What safeguards are in place to ensure the target is actually involved in drug activity?

b. What constitutes involvement in drug activity?

c. If someone is targeted under this program, and it is later revealed there was no nexus to drug activity, what happens to the data that the DEA collected, and is the person ever notified that data about them was obtained by the government?

d. What actions will be taken to ensure this program will not be abused in a similar manner to the programs discussed in the OIG report?

The Senators also want to know what the DOJ is doing to prevent this sort of thing from happening again. They're also asking the DOJ if it's following through with the recommended overhaul of its parallel construction practices as well as the internal legal process authorizing new bulk records collection programs.

Considering Barr's running the place again, it seems unlikely answers are forthcoming, and -- if and when answers do eventually arrive -- they will be forthcoming. The new AG has made it clear the administration doesn't need to answer to anyone, not even other branches of the government that are supposed to ensure one branch doesn't grab too much power for itself.

The DOJ doesn't like talking about its screw-ups or its secrets or its ridiculous belief that Drug Wars are good and easy to win. AG Barr's position at the head of the department only buttresses these positions. I wish Wyden and Leahy all the luck in the world, but something tells me the clock will run out on this administration before the DOJ's willing to talk about a twenty-seven-year-old, potentially illegal surveillance program.

Filed Under: 4th amendment, bulk data collection, dea, doj, surveillance, warrantless surveillance, william barr

Court Documents Appear To Confirm The FBI Is Using Best Buy Techs To Perform Warrantless Searches For It

from the private-search-loophole dept

As we covered last week, the FBI has apparently been paying Best Buy Geek Squad members in exchange for tips about illegal material discovered on customers' computers. This is problematic for a couple of reasons.

First, adding a financial incentive could lead to Best Buy employees digging around in users' computers in hopes of finding something to turn in, rather than limiting themselves to the job at hand: repairing the device.

Second, while companies are legally obligated to report the discovery of child porn to law enforcement, this occurs as a "private search." As such, it's perfectly legal and can result in the probable cause needed to perform a forensic search of the computer, as well as (possibly) any other electronic devices the customer owns. But when the FBI turns Best Buy employees into confidential informants -- paid or not --it's no longer a private search. It's a third-party search at the government's request. The government can't task private individuals with performing warrantless searches on its behalf -- at least not if it wants to hold onto the evidence.

The government is arguing that there was nothing wrong with the FBI's relationship with Best Buy. This is being argued despite the growing amount of evidence showing the FBI's role in Best Buy searches of computers is anything but passive.

One former agent confirms [PDF] in her declaration that the employee who alerted the FBI to alleged child pornography found on the computer of the defendant in this case, had been signed up by the agency as a “confidential human source” (CHS) in 2009 — two years before the offending content was discovered in this case — but contends that this worker was “never asked” to “search for child pornography or evidence of any other crime on behalf of the FBI.”

However, in a Dec. 19 order [PDF] in this case, the judge notes that emailed communications may hint at a deeper connection between the agency and the Geek Squadder.

For instance, in Oct. 2009, this agent emailed the Best Buy staffer to set up a meeting “to discuss some other ideas for collaboration.” The since-retired agent now says she has no “independent recollection of what ‘collaboration'” refers to in that email, blaming her memory lapse on brain damage caused by Lyme disease.

Whatever the case may be, the documents do seem to show what Mark Rettenmaier, the defendant at the center of this case, alleges they do: a close partnership between the FBI and Best Buy that has gone on for years.

Judge Cormac Carney's ruling on Rettenmaier's demand for document production from the FBI indicates that what he's seen so far (many of the documents handed over by the FBI to date are under seal) points in this direction.

According to the FBI, [Best Buy employee] Meade was a CHS [confidential human source] for two periods of time—October 2008 to January 2009 and November 2009 to November 2012. During the first CHS period, Meade worked with FBI Agent Richard T. Boswell. (See Bates 1123; Dkt. 152 at 6.) Before the second CHS period, Agent Jennifer Cardwell took over for Agent Boswell (Agent Riley took over for Agent Cardwell in July 2010 (Bates 1028)). (Bates 1122–23.) Meade estimates that he contacted the FBI reporting child pornography approximately six to nine times per year. (Bates 544–45.) Though the FBI has had eight different CHS at Best Buy’s Kentucky facility, at the time when Best Buy had Rettenmaier’s hard drive, only Meade and Ratliff were connected to the FBI. (Dkt. 152 at 6.) Both Ratliff and Meade received payment from the FBI; every CHS prior to February 2012 received payment.

The government is refusing to hand over any more information that may shed more light on this relationship, but Judge Carney isn't going to let it get away with it. The government claims any such evidence, if produced, would only "undermine" Rettenmaier's "unsupported argument" about the FBI/Best Buy BFF situation. Judge Carney basically says we won't know until we see it, will we?

The Court cannot determine whether Rettenmaier’s “unsupported” argument has merit as long as the Government refuses to produce the evidence that may support it; the Government’s hope that the evidence will undermine Rettenmaier’s motion does not exempt its production.

The ruling almost completely denies the government's motion to quash, which means that the documents demanded -- if they exist -- will have to be turned over to the defendant. Most will probably be filed under seal, but some are bound to escape the FBI's desire for complete secrecy. What leaks out around the edges will be interesting, and mostly sussed out through defense motions and judicial orders. If the FBI is treating private companies' employees as confidential informants, then it's basically utilizing the private sector to perform warrantless searches for it.

Filed Under: 4th amendment, computer repair, fbi, geek squad, informants, warrantless surveillance
Companies: best buy

John Yoo's Legal Rationale: Warrantless Surveillance Is Basically A DUI Checkpoint, But For Terrorism

from the drunk-texting,-dialing,-emailing,-internet-browsing... dept

Mike Masnick took a very in-depth look at the recently declassified legal rationale for warrantless surveillance, authored by torture aficionado John Yoo back in 2002. The long and the short of the letter is this: executive power trumps everything, even the Constitution. The letter was "given" to the FISA court, much in the way an expensive and fragile item is "given" to a toddler. FISC Judge Kollar-Kotelly was allowed to look at it, but not keep a copy or take notes.

One of the more darkly entertaining aspects of the letter is Yoo's "kitchen sink" approach to justifying the warrantless searches and seizures. USA Today's Brad Heath pointed out the long list of rough comparisons Yoo included in the letter, claiming that warrantless domestic surveillance was roughly comparable to searching high school kids' lockers for drugs… among other things.

Bush Admin. concluded NSA wiretaps didn't require a warrant, citing drug testing of high-school athletes. pic.twitter.com/Rw4TJcUhDt

— Brad Heath (@bradheath) February 29, 2016

Here's the list:

A variety of government searches, therefore, have met the Fourth Amendment requirement of reasonableness without obtaining a judicial warrant. The Supreme Court, for example, has upheld warrantless searches that involved the drug testing of high school athletes, id, certain searches of automobiles, Pennsylvania v. Labron, 518 US. 938 (1996) (per curiam), drunk driver checkpoints, Michigan v. Dept of State Police v. Sitz, 496 U.S. 444 (1990), drug testing of railroad personnel, Skinner v. Railway Labor Executives Ass'n 489 US. 602 (1989), drug testing of federal customs officers, Treasury Employees v. Von Raab, 489 US. 656 (1989), administrative inspection of closely regulated businesses, New York v. Burger, 482 US. 69] (1987), temporary baggage seizures, United States v. Place, 462 U.S. 696 (1933), detention to prevent flight and to protect law enforcement officers, Michigan v. Summers, 452 U.S. 692 (1931), checkpoints to search for illegal aliens, United States v. Martinez-Fuerte, 423 US. 543 (1976), and temporary stops and limited searches for weapons, Terry v. Ohio, 392 US. 1 ([96 8). The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control. See Indianapolis v. Edmond, 531 U.S. 3 2, 41 (2000); Delaware v. Prouse, 440 US. 648, 659 n.13 (I979).

According to the government, warrantless surveillance is a Terry stop… or a drug test performed on railroad workers… or a demand for records from a pawn shop.

Yoo expands on this rationale later in the letter, stating that warrantless electronic surveillance is really nothing more than a DUI checkpoint, but for terrorism.

If privacy interests are viewed as intruded upon only by [redacted ] is likely that Fourth Amendment interests would not outweigh the compelling governmental interest present here, In the context of roadblocks to stop drunken drivers, another area of "special needs" under the Fourth Amendment, the Court has permitted warrantless searches. See Michigan Dep't of State Police v. Sitz,, 496 US. 444 (1990). There, the Court found that a roadblock constituted a "reasonable" search due to the magnitude of the drunken driver problem and the deaths it causes -- in fact, the court compared the death toll from drunk drivers to the casualties on a battlefield. Id. at 451. It found that this interest outweighed the intrusion into privacy at a checkpoint stop, which it characterized as "brief" in terms of duration and intensity. Similarly, [redacted] than in the case of a roadblock, where a [redacted] law enforcement officer stops each driver to examine whether they are inebriated. It seems that if the Supreme Court were willing to uphold drunk driver checkpoints, it would be equally or even more willing to allow [redacted].

It's a disingenuous argument that equates surveillance of millions with a low-impact checkpoint in which dozens of drivers are given a cursory look-over by law enforcement to determine whether or not they've been drinking.

But he is right about one thing: courts have been willing to cut the government more Constitutional slack when the subject matter is the War on Terror. This legal rationale was issued shortly after the 9/11 attacks when government and court sentiments would be almost exclusively receptive to Yoo's arguments. But the searches Yoo authorized are far more general than the particularized nature of the searches he cites. In each case, there's a specific group targeted. The NSA's programs aren't nearly as focused. Communications and metadata are gathered by the millions -- both a seizure and a search -- before being refined to focus on suspected terrorists.

The surveillance Yoo argued for treats all communications originating or terminating in a foreign country as "suspicious" and subject to warrantless searches. To use his analogies, this is like claiming every locker not in a private residence should be subject to warrantless searches because contraband is sometimes stored in them. Or that every business that sells or purchases anything from overseas vendors should be subjected to the same scrutiny as pawn shops and motels simply because most terrorist attacks originate outside of US borders.

Filed Under: dui checkpoint, fisa, john yoo, mass surveillance, nsa, warrantless surveillance, wiretapping

2002 Legal Rationale For Warrantless Surveillance: Because The President Can Do It, Shut Up

from the how-is-john-yoo-not-in-jail? dept

Oh, John Yoo. The former top Bush administration lawyer -- who is already well-known for writing that administration's (totally bullshit) "legal defense" for torture -- has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn't apply to the NSA because it takes too long. Then, he said that judges shouldn't be allowed to determine if the NSA violated the 4th Amendment because they're too out of touch with the American public. It's long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he's been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here.

As the ODNI release notes, Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA's warrantless surveillance on Americans, but "was not authorized to retain a copy or take notes" because nothing says transparency democracy like secret interpretations of the law where no one's allowed to know the details, and the people overseeing it are only allowed to glance at the justifications. It was the "re-evaluation" of this John Yoo rationalization that created the now infamous hospital room showdown in March of 2004, when some in the administration realized that Yoo was basically full of shit.

Anyway, now the Yoo memo (with plenty of redactions, of course!) has been released, and we can see just how absolutely ridiculous the whole thing was. In short, Yoo argues that even though, historically, the NSA was not allowed to do warrantless surveillance on Americans and the Foreign Intelligence Surveillance Act (FISA) made it clear that domestic surveillance needed to first be approved with warrants to the FISA Court (which is barely a court anyway), there was nothing that said that had to be the case, and the President was basically free to turn the NSA loose to spy on Americans without any FISA approval. First, he notes that the NSA is not technically or legally limited in surveilling Americans, even if it historically avoided doing so: In short, that says because Congress didn't explicitly limit the NSA in the same manner as the CIA, that must mean it's okay for the NSA to spy on Americans. This basically ignores the history and rationale for the NSA, which was entirely secret for much of its early history anyway, and created and run out of the executive branch with little Congressional oversight. Yoo then admits that the driving executive order that enables much of the NSA's activities -- the infamous Executive Order 12333 -- does explicitly say that the NSA can only conduct foreign signals intelligence surveillance, but that doesn't matter, because future Presidents aren't bound by previous Presidents' executive orders. He also argues that if the NSA is spying on Americans in order to seek "significant foreign intelligence," then it's perfectly fine as well. He then admits, generously, that even though there's no actual legal restriction (in his mind) on the NSA spying on Americans, that it could "be in tension with FISA" since FISA requires a warrant for domestic surveillance. But fear not, evil legal genius John Yoo has a bullshit way around that as well. He goes through a detailed description of the limits of getting a warrant approved by FISA and bemoans the fact that it wouldn't be possible to intercept all phone calls from a certain country under FISA.

And here's where he gets really tricky. He says that FISA is not necessarily a limitation on what kind of surveillance can be done, but merely a safe harbor such that if you follow it you're automatically presumed safe under the 4th Amendment. However, he insists that FISA cannot limit the President's constitutional powers, and thus the President can still order warrantless domestic surveillance outside of FISA, and the only issue is that it's outside of the FISA "safe harbors" -- so it may not be automatically presumed in compliance with the 4th Amendment: From there, he goes on for a while insisting that the President has the Constitutional power to order warrantless surveillance basically whenever he wants, with the only limitation being the 4th Amendment (which we'll get to). And then he pulls a neat little trick, insisting that the President doesn't require a warrant for conducting surveillance for national security related purposes (pointing to some caselaw involving questions around due process in espionage cases), and notes that, even better, FISA itself means that "surveillance conducted for national security purposes is not subject to the same Fourth Amendment standards that apply in domestic criminal cases."

Did you see the neat trick he played there? First, he showed that the President can ignore FISA and Executive Order 12333, and then used FISA (which he already said the President could ignore) to argue that the 4th Amendment standards don't really apply either. You want to know why lawyers get a bad name for bullshit arguments? Look at John Yoo -- and then remember that his bullshit arguments weren't just around a single case, but to justify spying on all Americans without a warrant (we'll leave aside the fact that he did the same thing for torture as well).

From there, he actually argues that a court reading FISA to restrict the President would create a constitutional conflict: This is a pretty fascinating rewriting of history. The whole point of the Foreign Intelligence Surveillance Act was to put limits and oversight on the collection of foreign intelligence information. And here Yoo argues that Congress intended no such thing as the very purpose of the law. That's kind of astounding.

From there, Yoo then tries to argue that warrantless wiretapping of basically everyone in America also does not violate the 4th Amendment. First, he argues that the 4th Amendment does not apply to non-US persons. Next, he said that communications that leave the US electronically are also no longer subject to the 4th Amendment due to the "border search exception" -- an issue that we've discussed plenty of times for people who have had their laptops searched as they enter the country. This, apparently, is part of Yoo's 4th Amendment loophole. Any communications involving Americans that happens to slip outside of US borders loses any 4th Amendment protections. The fact that it's digital, not physical, makes no difference according to John Yoo's extremely distorted moral compass. But, he admits that there might be some concerns about the border search theory with regards to the contents of email and phone calls, so he has a trick: how about we just say the 4th Amendment doesn't apply to the metadata, and we'll call it even.

Then he uses the infamous Smith v. Maryland case, that established the Third Party Doctrine to argue further that there's no 4th Amendment issue with sucking up all metadata. We've heard this argument many times in court by now. Because this one 1979 ruling, which was about whether or not law enforcement could get the phone records of a single phone from a person that they were tracking for criminal behavior, that means that everyone has given up any expectation of privacy in any metadata they have on any communications record -- including email. This also suggests Yoo has no clue how email works. The reason that the phone records were considered legit was because the phone company had to track all of your phone calls for billing reasons, and thus had a "legitimate business purpose" in keeping track of all your phone record metadata. That's not how email works, but Yoo basically pretends it does: My ISP doesn't get access to who I email. Because that's not how email works.

Next up, Yoo argues that because the Fourth Amendment was really designed to deal with "curbing law enforcement abuses," it really shouldn't apply to support for "military operations." And since the response to 9/11 is really about military operations, the 4th Amendment shouldn't apply to spying on all Americans because it's to support that purpose: Finally, he argues that even if this program were subject to the 4th Amendment, which he doesn't think it should be, that's still okay, because snooping on every American's communications is still "reasonable" under the 4th Amendment... because TERRORISTS!!!!!!! In short, Yoo basically wipes aside anything that protects Americans from mass surveillance, despite the fact that the 4th Amendment was specifically designed to stop "general warrants" that allowed for mass surveillance, and despite the fact that FISA was passed to stop government abuse of surveillance powers. To Yoo, there's an excuse for basically any kind of government intrusion on our private lives, and even if the laws and Constitution do apply, no problem, you just shout "terrorism" and all is allowed.

This is a really sickening letter. At the very least, it should have been made public at the time it was written so that it could have been debated (and trashed as ridiculous) at the time it was made. Instead, it was done in secret, given to a judge who could only read it and not keep it or take notes, and then wasn't revealed publicly for almost 14 years. This is not how a democracy is supposed to function.

Filed Under: 4th amendment, colleen kollar-kotelly, email, fisa, john yoo, legal rationale, metadata, nsa, surveillance, warrantless surveillance, warrantless wiretapping

Reps. Goodlatte And Ruppersberger Admit That NSA Is Warrantlessly Spying On Americans' Communications

from the well,-there-you-go... dept

We've already written about the surprising, but encouraging, vote late last night to defund backdoor searches by the NSA. But it's worth looking at some of the floor debate on the amendment last night -- in particular the push against the amendment from Reps. Goodlatte and Ruppersberger, who both appear to flat out admit that the NSA does warrantless spying on Americans' communications, in direct contrast to earlier claims. The reasons for these two to argue against the amendment are clear. Goodlatte was the guy who negotiated the "deal" with the White House and the House Intelligence Committee to completely water down the USA Freedom Act, and he knows that this amendment puts some of the substance that he stripped out right back in. Ruppersberger, of course, represents the district where the NSA is headquartered, and is the ranking member for the House Intelligence Committee. His loyalty to the NSA over the American public has always been clear. But to have them basically admit that the NSA does warrantless spying on Americans is quite impressive. Here are both of them arguing against the amendment: Goodlatte kicks it off by whining about how this undoes the "carefully negotiated compromise" in the USA Freedom Act. He leaves out that "carefully negotiated" was what happened after the markup, completely changing the nature of the bill. However, in describing the "existing minimization procedures," he notes (correctly) that the NSA isn't supposed to do searches on Americans, but then puts in the all-important "except" which undermines the whole thing and shows that the NSA is (contrary to the law) spying on the communications (not metadata) of Americans:

HR 3361 [the USA Freedom Act] also prohibits the government from using communications to or from a United States person or a person who appears to be located in the United States EXCEPT where the communication relates to a target under Section 702 or to protect against an immediate threat to human life.

Yeah, that's a pretty big "except." Remember, the NSA is not supposed to ever look at communications by anyone inside the US or an American citizen abroad without a warrant. Yet, Goodlatte flat out admits that the NSA does exactly that if the communications (again, not just metadata) "relate to a target." Now, remember, in discussing this how we recently highlighted that "relate to a target" means any communication about a target? In other words, Goodlatte is more or less admitting that if you merely mention Al Qaeda or Osama bin Laden in an email, the NSA has the right to read your email without a warrant. That's the backdoor search that so many people have been concerned about, which very clearly violates the 4th Amendment's requirement for a warrant. And here is Goodlatte pretending it's no big deal.

Goodlatte then notes that the NSA can't use Section 702 to "target" a US person, but that's misleading. Because the NSA can collect communications "to" "from" or "about" a target, it means that tons of communications (again, not just metadata) by US persons are being spied on by the NSA entirely without a warrant. And this gets bigger and bigger when the "target" is defined broadly.

Then Ruppersberger jumps in to add his "thoughts" on the amendment. He too flat out lies, and claims that the USA Freedom Act was a one-year process of "carefully considered negotiation and debate." That's not even remotely accurate. The original was left to sit and dangle until it appeared that there might be enough support for it, and then frantic negotiations took place to water it down before the markup. Then, after the markup, the White House stepped in and watered it down even further at the very last minute, so that most of those voting on it had no idea what was actually in it, and how it stripped out nearly every thing that "limited" the NSA. Then, he too, admits how it allows for warrantless spying on Americans, by spewing FUD about bomb threats in the US:

It makes our country less safe. It would prohibit the urgent search of lawfully collected information to thwart a bomb threat against a synagogue in Los Angeles, a church in Maryland or the New York Stock Exchange.

In other words, contrary to the claims before, Ruppersberger is directly admitting that it's used to spy on communications in the US. And, again, it wouldn't prohibit searches with a warrant, which are (contrary to what some claim) not that difficult to get.

Five minutes later, Goodlatte speaks again, and this time he's much angrier than before (perhaps having received some advanced warning that this amendment was going to pass overwhelmingly): He kicks it off by saying that the USA Freedom Act "honors the 4th Amendment." But then goes on a FUD brigade, listing out a bunch of angry claims about terrorists in the middle east and how they want to attack us. Then there's the inevitable claims about how "the terrorism threat is growing" (which kind of undermines the claims that all this intelligence has been useful, no?), and ridiculously argues that this amendment "creates a blind spot" for the intelligence community. It does not. It just says that you need to have an actual warrant for spying on the communications of US persons, meaning that they can't just sweep up every email of every person who obliquely references "a target." Then, once again, he effectively admits that this is about spying on Americans:

[It would] create an impediment to the government's ability to locate threat information already in its possession.

This is misleading, but revealing. All the amendment did was say that the NSA can't do searches on the communications of US persons. The "impediment" is merely making sure that the NSA obeys the law which says it cannot spy on the communications of US persons without a warrant. By arguing that this creates an impediment to "threat information already in its possession," Goodlatte is admitting that the NSA is collecting communications of Americans without a warrant.

So, yeah, the next time someone argues that the NSA is either (a) not spying on Americans or (b) not spying on the actual content of communications, you might want to point them at these clips, in which two of the bigger NSA defenders have admitted that, in fact, that's exactly what the NSA does.

Filed Under: 4th amendment, bob goodlatte, dutch ruppersberger, massie amendment, nsa, section 702, surveillance, warrantless surveillance, warrants