Tag: Fourth Amendment

Sep 22

Everthing New Is Old A Moment After It Happens

As you read this , you are reading history. Not in the sense that it is something memorable but in the sense that it has happened. So everything that we do or say, once said or done, is in the past one nanosecond later. Think about that and now apply it to the the Fourth Amendment and warantless searches by law enforcement.   The North Carolina Court of Appeals has now applied that logic to a ruling involving the search of a defendant’s  cell phone records without a warrant (pdf) through the backdoor of warrant that was tangential to the case.

Superior Court Judge Lucy N. Inman signed the order and Detective Mitchell submitted it to AT&T, the cellular phone service provider and holder of the account associated with the phone number. AT&T provided the records of the location of the cell phone tower “hits” or “pings” whenever a call was made to or from the cell phone. AT&T sent emails of the longitude and latitude coordinates of these historical cell tower “hits” to Detective Mitchell every fifteen minutes. Detective Mitchell testified an approximately five- to seven-minute delay occurred between the time the phone “pinged” a cell phone tower and the time AT&T received and calculated the location and sent the latitude and longitude coordinates to him.

Tim Cushing at Techdirt explains how the definition of “historical” has now been twisted to violate a defendant’s civil rights:

The defendant argued that the “real time” tracking of his location violated his Fourth and Fourteenth Amendment rights (as well as analogous parts of North Carolina’s constitution). The court doesn’t buy these arguments, citing the Stored Communications Act, which allows government entities to obtain certain third party records without a warrant. It says the difference between what’s been considered unconstitutional by several courts — obtaining real-time location information with a tracking device — isn’t what’s happening here.

It argues that because the police didn’t intercept these “records,” everything is above-board, even if the sought “historical” data included two days of “records” that were created after the court order was approved.

Several courts have held the SCA permits a government entity to obtain cell tower site location information from a third-party service provider in situations where the cell tower site location information sought pre-dates the court order and where the cell tower site location information is collected after the date the court order issues. Although the former may technically be considered “historical” while the latter is “prospective” in relation to the date of the court order, both are considered “records” under the SCA. The government entity only receives this information after it has been collected and stored by the third-party service provider.

In plainer English, this means law enforcement entities can seek “historical” records from the “future,” with the mitigating factor being that the records are collected by third parties first. A short delay of a few minutes is enough to call these records “historical” under this interpretation.  [..]

While the majority’s interpretation dilutes the meaning of “historical” by including location data yet to be generated under its warrantless wing, it does point out to possible future problems with the use of Stingray devices. These have often been deployed with the same sort of court orders, but contain the ability to track individual phones in real time. Once more details on these deployments come to light, the courts will be forced to confront a plethora of Fourth Amendment violations — at least if they’re going to remain consistent with this interpretation of “historical.”

Can you hear the sound of the shredder?

Jun 02

The Patriot Act Ain’t Dead Yet

While the Senate failed to pass the USA Freedom Act during Sunday’s emergency session, it did get past a cloture vote to continue debate and consider amendments that could either weaken or strengthen the already inadequate reform of the controversial Section 215 of the Patriot Act. So for the moment, the most egregious parts of the act which violate the Fourth Amendment have expired. So what next? There is no chance to renew the Patriot Act, as the Senate Republican leadership would prefer. Amending the US Freedom Act would necessitate the bill being returned to the House for another vote or hash out the details in a conference committee. None of this looks good for a resolution anytime soon, which is not entirely a bad thing.

McConnell introduced a handful of amendments Sunday evening on behalf of himself and Senate Intelligence Committee Chairman Richard Burr (R-N.C.). Paul and Sen. Bernie Sanders (I-Vt.) has also attempted to bring up amendments of their own, but they were blocked.

Paul’s opposition will push votes on both those amendments and the final bill back to Tuesday at the earliest, and potentially Wednesday.

The House would then either need to vote on the new bill or hash out the details in a conference committee.

Rep. Justin Amash (R-Mich.) – an NSA critic – warned senators against adding amendments to the legislation that could potentially weaken the bill in the eyes of its supporters.

“On the House side, there’s not support for a more watered down version of the Freedom Act,” he said. “If they want to get something passed through the House, they need to make it better not worse.

Pulitzer Prize-winning journalist with The Intercept, Glenn Greenwald gave his reaction to the expiration of the act and the fear mongering that will ensue to Democracy Now!‘s Amy Goodman’



Transcript can be read here

The internecine GOP politics surrounding this are quite a maze since it involves not just Sen. Paul’s candidacy for president in 2016, but power fights between the House and Senate leaderships. Sen. McConnell and House Speaker John Boehner (R-OH) are not exactly best of friends.

The game is now in the Senate and could mean the permanent end of Section 215. Let’s keep our fingers crossed they screw this up.  

May 28

Changing Minds on Edward Snowden

Former Assistant Secretary of State for Public Affairs in the Jimmy Carter administration Hodding Carter III has changed his mind about Edward Snowden whose leaks of NSA programs to the public has sparked the debate a the renewal of the Patriot Act. In an article in Salon, he explains  his change of heart and offered an apology to The Intercept‘s Glenn Greenwald.

Glenn Greenwald, I’m sorry: Why I changed my mind on Edward Snowden

What follows is based on sixty years of experience in public life and journalism. It arises from deepening concern about the people’s limited appreciation of the First Amendment and disgust with media waffling behind timidity’s breastworks. It also arises from urgent unease about government overreach in the name of “homeland security,” an overreach based on post-9/11 fear, political opportunism and an all but explicit assertion that a free people do not need to know and should not demand to know how they are being protected. There is no pretense here of carefully allocated balance, that briefly treasured convention of American journalism. Instead, this is an attempt to explain the evolution of today’s media-government confrontations and to suggest answers to the hard questions that currently face the press when national security clashes with the Bill of Rights.

Unless informed consent is to be treated as a dangerous relic of more tranquil times, these questions should be answered on behalf of the American people as often as they arise. That means applying general principles to specific cases. Knowing the evolution of press freedom can be useful. Having an accurate picture of the chaotic realities of the murky present is crucial. Hard cases are inevitable; hard-and-fast rules are rarely available and too often inapplicable to current conditions. In the end, as always, it is up to each journalist and news organization to be willing to stand alone, to ask, and to answer individually:

“Whose side are you on?”

Mr. Carter and Glenn Greenwald appeared on MSNBC’s “The Last Word” to discuss the surveillance and the firght over the renewal of the Patriot Act.

Whose side are you on?

May 23

Extension of Patriot Act Provisions Blocked

C-Span is fast becoming my late night entertainment channel. The Senate’s votes on the House USA Freedom Act and Senate Majority Leader Mitch McConnell’s attempts to extend the Patriot Act provisions for mass surveillance, for even one day past June 1, were well worth staying up to the early morning hours well worth the loss of sleep. (Not that I don’t anyway.) It was, at last, an epic #FAIL for the spies and fear mongers on both votes.

By a vote of 57-42, the USA Freedom Act failed on Friday to reach the 60-vote threshold needed to advance in the Senate after hours of procedural manoeuvering lasted into the wee hours Saturday morning.

The result left the Senate due to reconvene on May 31, just hours before a wellspring of broad NSA and FBI domestic spying powers will expire at midnight.

Architects of the USA Freedom Act had hoped that the expiration at the end of May of the Patriot Act authorities, known as Section 215, provided them sufficient leverage to undo the defeat of 2014 and push their bill over the line.

The bill was a compromise to limit the scope of government surveillance. It traded the end of NSA bulk surveillance for the retention through 2019 of Section 215, which permits the collection of “business records” outside normal warrant and subpoena channels – as well as a massive amount of US communications metadata, according to a justice department report. [..]

On Saturday morning, after both cloture votes failed, Senate majority leader Mitch McConnell asked for unanimous consent to extend the Patriot Act for a week. Paul objected. Objections were then heard from Paul, as well as from Oregon Democrat Ron Wyden and New Mexico Democrat Martin Heinrich on four-day, two-day and one-day extensions. Eventually McConnell gave up and announced that the Senate would adjourn until 31 May, the day before the key provisions of the Patriot Act expire. [..]

Those who want a straight extension of the Patriot Act are in a distinct minority and supporters of the USA Freedom Act still cannot muster the necessary super majority to advance the bill. The result means those who are more than happy to simply let Section 215 expire on May 31 are in the driver’s seat.

When reporters asked Paul on Saturday morning whether he was concerned about the provisions of the Patriot Act expiring at the end of the month, the Kentucky Republican seemed unworried “We were liking the constitution for about 200 years and I think we could rely on the constitution.”

Watch Sen. Paul shut down Sen McConnell’s attempts to extend the Patriot Act,

Also caught in that clip was Sen. Huckleberry Butchmeup rolling his eyes and picking his nose as Sen. Paul was speaking.

This was Marcy Wheeler’s (emptywheel) reaction on the proceedings

It’s not certain just how “legal” Pres. Obama’s request to the FISA court would be considering the federal appeals court ruling last week that found the N.S.A.’s bulk collection of phone records illegal.

The Senate will return from the Memorial Day break one day early, on May 31, to reconsider an extension of the three provisions of the Patriot Act that will expire the next day.

Let me say two things. First, I am ashamed that any Democrat supported the farce House bill that does nothing to protect our Fourth Amendment rights. Sorry, Sen. Boxer, this is not protecting our county.

Second, a hearty thanks to Senator Rand Paul, who for the fist time that I can remember, went past Charles Pierce’s five minute rule for anything he says.

Jan 14

Privacy Under Attack After Charlie Hebdo

Cross posted from The Stars Hollow Gazette

SOPA Reddit Warrior photo refresh31536000resize_h150resize_w1.jpg
Well, this didn’t take long. President Barack Obama and Britain’s Prime Minister David Cameron didn’t let any dust settle.

Cybersecurity bill: privacy activists warn of unnecessarily ‘broad legal immunity’

By Dan Roberts, The Gusrdian

White House hoping legislation will toughen private sector response by allowing companies to share information with government agencies including NSA

Barack Obama plans to announce new cybersecurity measures on Tuesday amid warnings from privacy campaigners about unnecessarily “broad legal immunity” that could put personal information at risk in the wake of attacks like the Sony Pictures hack.

Just a day after the Pentagon’s own Twitter account was compromised and Obama pushed a 30-day window for consumer security breaches, his administration was hoping the proposed legislation would toughen the response of the private sector by allowing companies to share information with government agencies including the NSA – almost immediately and under broad protection. [..]

The administration believes the legislation is necessary partly to give companies legal immunity for sharing information on attacks so that counter-measures can be coordinated, but the White House has stepped back from suggestions that companies should be allowed to individually retaliate against hackers, fearing such encouragement could lead to an escalation of cyber warfare.

A White House statement released in advance of Obama’s speech on Tuesday said it “encourages the private sector to share appropriate cyber threat information with the Department of Homeland Security’s National Cybersecurity and Communications Integration Center”.

David Cameron pledges anti-terror law for internet after Paris attacks

By Nicholas Watt, Rowena Mason and Ian Traynor, The Guardian

PM calls for new laws to break into terrorists’ communications but Nick Clegg warns of encroachment on civil liberties

Britain’s intelligence agencies should have the legal power to break into the encrypted communications of suspected terrorists to help prevent any Paris-style attacks, David Cameron proposed on Monday.

The prime minister said a future Conservative government would aim to deny terrorists “safe space” to communicate online, days after a warning from the director general of MI5, Andrew Parker, that the intelligence agencies are in danger of losing the ability to monitor “dark places” on the net.

His proposed legislation, which would be introduced within the first year of Cameron’s second term in Downing Street if the Conservatives win the election, would provide a new legal framework for Britain’s GCHQ and other intelligence agencies to crack the communications of terror suspects if there was specific intelligence of an imminent attack. Political approval would also be necessary.

They aren’t the only ones leaping on the security train wreck, the French and Italian governments have hooped on board.

More Surveillance Won’t Protect Free Speech

By Jillian York, Electronic Frontier Foundation

Following a terrorist attack, it is not uncommon to hear calls from politicians and government officials for increased surveillance. Fear and grief can lead to quick “solutions” that have significant consequences; as we pointed out last week, some of the most far-reaching surveillance and law enforcement powers around the world were devised in the wake of tragedies.

That’s why what we’re hearing this week-in the wake of the attack on Charlie Hebdo-alarms us. On Friday, French Prime Minister Manuel Valls suggested that “it will be necessary to take further measures” to address the threat of terrorism, despite the fact that French intelligence had collected “reams of intelligence” on the terror suspects, and despite a draconian anti-terror law established last November. As our German colleagues point out in a joint statement, France already has some of the strictest security measures in Europe. [..]

Italian authorities are planning new legislation that would enable the government to seize the passports of those suspected of traveling to Syria to join the Islamic State. Interior Minister Angelino Alfano stated Friday that Italy also needed “greater access to conversations between extremists online,” demanding help from Internet companies to provide the Italian government with better access to such data in order to create a “black list” of those who pose a security threat. [..]

Mass surveillance doesn’t only infringe on our privacy, but also our ability to speak freely. As a recent PEN American study found, for writers around the world, surveillance has the effect of chilling speech. The knowledge, or even the perception of surveillance, can prompt writers to think twice before touching upon a given issue.

Let us resist attempts to use this tragic moment as an opportunity to advance law enforcement surveillance powers. Freedom of speech can only thrive when we also have the right to privacy.

And last but not least, there is Manhattan District Attorney Cyrus Vance, a Democrat, scared that your i-phone is harboring criminals

New York’s Top Prosecutor Says We Need New Laws To Fight iPhone/Android Encryption

By Tim Cushing, Techdirt

from the because-child-murdering-drug-dealers,-of-course dept

The greatest threat to law enforcement since the motocar continues to receive attention from entities aghast at the notion that peoples’ communications and data might not be instantly accessible by law enforcement. Apple’s decision (followed shortly thereafter by Google) to offer default encryption for phone users has kicked off an avalanche of paranoid hyperbole declaring this effort to be a boon for pedophiles, murders and drug dealers.

New laws have been called for and efforts are being made to modify existing laws to force Apple and Google into providing “law enforcement-only” backdoors, as if such a thing were actually possible. New York County’s top prosecutor, Manhattan DA Cyrus Vance — speaking at an FBI-hosted cybersecurity conference — is the latest to offer up a version of “there ought to be a law.”

Mark Jaycox and Lee Tien of Electronic Frontier Foundaton released this statement regarding the president’s proposal.

Statement on President Obama’s Cybersecurity Legislative Proposal

More needs to be done to protect cyberspace and enhance computer security. But President Obama’s cybersecurity legislative proposal recycles old ideas that should remain where they’ve been since May 2011: on the shelf. Introducing information sharing proposals with broad liability protections, increasing penalties under the already draconian Computer Fraud and Abuse Act, and potentially decreasing the protections granted to consumers under state data breach law are both unnecessary and unwelcome.

Information Sharing

The status quo of overweening national security and law enforcement secrecy means that expanded information sharing poses a serious risk of transferring more personal information to intelligence and law enforcement agencies. Given that the White House rightly criticized CISPA in 2013 for potentially facilitating the unnecessary transfer of personal information to the government or other private sector entities when sending cybersecurity threat data, we’re concerned that the Administration proposal will unintentionally legitimize the approach taken by these dangerous bills.

Instead of proposing unnecessary computer security information sharing bills, we should tackle the low-hanging fruit. This includes strengthening the current information sharing hubs and encouraging companies to use them immediately after discovering a threat. [..]

Increased Criminalization

The administration’s proposals to increase penalties in the Computer Fraud and Abuse Act are equally troubling. We agree with the President: “Law enforcement must have appropriate tools to investigate, disrupt and prosecute cyber crime;” however, the past two years of surveillance disclosures has shown law enforcement certainly doesn’t need more legal authorities to conduct digital surveillance or prosecute criminals. [..]

Federal Data Breach Law

The President’s legislative proposal also follows up on yesterday’s announcement to pursue a federal data breach law. Consumers have a right to know when their data is exposed, whether through corporate misconduct, malicious hackers, or under other circumstances. Over 38 states already have some form of breach notification law-so the vast majority of Americans already get some protection on this score. While the President has not yet released detailed legislative language, the Administration’s May 2011 Cybersecurity legislative proposal would preempt state notification laws, removing the strong California standard and replacing it with a weaker standard. [..]

Many of these proposals are old ideas from the administration’s May 2011 Cybersecurity legislative proposal and should be viewed skeptically. While the Administration information sharing proposal may have better privacy protections than dangerously drafted bills like CISPA, we think the initial case for expanding information sharing requires much less secrecy about how intelligence and law enforcement agencies collect and use data on our networks. And instead of increasing penalties under the Computer Fraud and Abuse Act, we’ve long advocated common sense reform to decrease them.

Here’s hoping there are enough sane heads left in legislatures to stop this in its tracks, on both sides of the pond.  

Aug 01

Democracy Under Fire

Cross posted from The Stars Hollow Gazette

In a joint statement, the ACLU and Human Rights Watch released a 120 page report documenting how mass surveillance by the US is undermining constitutional rights to freedom of the press and legal council

The 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy,” is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.

Amy Goodman and Aaron Mate sat down with Alex Sinha, Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union, and Jeremy Scahill, staff reporter with The Intercept to discuss the threat to Americans’ liberties.

In a new report, Human Rights Watch and the American Civil Liberties Union warn that “large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work.” The report is based on interviews with dozens of reporters and lawyers. They describe a media climate where journalists take cumbersome security steps that slows down their reporting. Sources are afraid of talking, as aggressive prosecutions scare government officials into staying silent, even about issues that are unclassified. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability provide the best possible defense.



Transcript can be read here

Journalism under fire: America’s freedom of the press is in danger

By Heather Digby Parton, Salon

If there’s one thing that civil libertarians across the American political spectrum tend to agree upon, it’s that the Bill of Rights is a guiding document. It doesn’t say everything but it says a lot. The various political factions do sometimes differ in their emphasis and interpretation, with the right’s civil libertarians often tending to focus more closely on the 1st Amendment’s establishment clause and the 2nd Amendment while the left-leaning civil libertarians take a harder line on freedom of speech and the 4th amendment. This is of course a sweeping generalization which can be disproved in dozens of individual cases, but for the sake of argument, it can probably be stipulated that those who concern themselves with the civil liberties enshrined in the Constitution all agree on the Bill of Rights’ importance to our constitutional order.  And they tend to agree across the board, with equal fervor, on the necessity of a free press to a functioning democracy. [..]

Considering the reaction of many people in the government toward reporters involved in the NSA revelation, it’s clear they have reason to be paranoid. There are government officials awho consider them to be spies and have said they should be punished as such. Even fellow journalists have brought up the question of “aiding and abetting” as if it’s a legitimate line of inquiry.

The atmosphere of mistrust is also rampant within the government, as with the administration having cracked down on contacts between the intelligence community and issuing threats of legal action even before the Snowden revelations. The institutionalized, government-wide initiative called the Insider Threat Program could have any federal employee looking over his  shoulder and worrying that his innocent behavior might be construed as suspicious. [..]

And it’s not just national security agencies that are subject to this program. They are in effect in departments as disparate as the Department of Education and the Peace Corps.

Top Journalists and Lawyers: NSA Surveillance Threatens Press Freedom and Right to Counsel

By Dan Froomkin, The Intercept

Not even the strongest versions of NSA reform being considered in Congress come anywhere close to addressing the chilling effects on basic freedoms that the new survey describes.

“If the US fails to address these concerns promptly and effectively,” report author  G. Alex Sinha writes, “it could do serious, long-term damage to the fabric of democracy in the country.”

Even before the Snowden revelations, reporters trying to cover important defense, intelligence and counter-terrorism issues were reeling from the effects of unprecedented secrecy and attacks on whistleblowers.

But newfound awareness of the numerous ways the government can follow electronic trails –  previously considered the stuff of paranoid fantasy – has led sources to grow considerably more fearful.

Jul 31

USA Freedom Act Still Won’t Protect Americans’ Liberties

Cross posted from The Stars Hollow Gazette

Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.

Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.

While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”

Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.

Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”

Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.

There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:

Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

   (iii) provide that the Government may require the prompt production of call detail records-

   (I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

   (II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough

The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.

I don’t think it is.

First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).

It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.

Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?

Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.

So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.

In other words, probably no different and potentially more lenient than what it does now.

And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:

I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.

But that’s not the part of the bill that disturbs me the most. It’s this language:

   ‘(3) FEDERAL BUREAU OF INVESTIGATION.-

   Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

The language refers, in part,  to requirements that the government report to Congress [..]

These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).

In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.

The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.

We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.

And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.

While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.

Jun 26

Cops Need a Warrant to Search Your Cell Phone

Cross posted from The Stars Hollow Gazette

The US Supreme Court has unanimously ruled that the police need a warrant to search the contents of cellphones seized from people they have arrested.

The opinion of the court, delivered by chief justice John Roberts, recognised that many owners of modern cellphones “keep on their person a digital record of nearly every aspect of their lives”, which may disclose a uniquely large volume of personal information if searched.

“Modern cell phones are not just another technological convenience,” Roberts wrote. “With all they contain and all they may reveal, they hold for many Americans the privacies of life.

Reading his ruling from the bench, Roberts went on: “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

As with the court’s ruling earlier this year limiting the use of GPS tracking by police, this is quite a victory for privacy in the modern age an the Fourth Amendment.

May 21

The USA Freedumb Act

Cross posted from The Stars Hollow Gazette

President Barack Obama has said that he wanted to reform how the NSA collects and stores metadata. What he says and what he does, again, are two different things.

The “Consult with Congress” Stage of USA Freedumb

By Marcy Wheeler, emptywheel

Remember how, in the days after President Obama announced his principles for reforming the dragnet, his Senior Administration Official pretended that any efforts to make the scope of the program worse would come from Congress? [..]

Well, it looks like the Administration isn’t so passive after all. They’re working with House leadership to gut the bill.

   TROUBLE FOR USA FREEDOM? – House leadership and Obama administration officials met with committee members Sunday to negotiate changes to key NSA reform legislation, parting late in the evening without reaching a final resolution, said a congressional staffer close to the process. Still, it seems clear that the USA FREEDOM Act, approved by the House Judiciary and Intelligence committees little more than a week ago, will not reach the House floor intact. Some passages have been watered down already, the staffer acknowledged, declining to go into specifics. The bill is set for “possible consideration” this week, according to the schedule circulated by House Majority Leader Eric Cantor’s office.

   Word of the talks caused some of the bill’s most ardent privacy and civil liberties backers to cry foul and say they could withdraw support. Areas of concern to watchdogs include possible removal of transparency language allowing companies to tell their customers about the broad numbers of lawful intercept requests they receive; and a debate on whether the search terms used by the NSA to search communications records should be narrowly defined in statute.

   “The version we fear could now be negotiated in secret and introduced on the House floor may not move us forward on NSA reform,” said human rights organization Access. “I am gravely disappointed if the House leadership and the administration chose to disrupt the hard-fought compromise that so many of us were pleased to support just two weeks ago,” said Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute.

And while it’s not clear these secret changes would broaden the scope outside of counterterrorism (though I think that’s possible already), it does seem clear the Administration is pushing for these changes because the already weak bill is too strong for them.

Congress is no better.

Advocates fear NSA bill is being gutted

By Kate Tummarello, The Hill

To win the support of NSA defenders, lawmakers abandoned some reform provisions in Sensenbrenner’s original bill. One of the major changes was dropping the appointment of a constitutional advocate to the Foreign Intelligence Surveillance Court, which approves the NSA’s spying requests, and substituting it for a panel of experts.

The bill was also stripped of language that would have allowed tech companies to publish more specific information about the number and types of government requests for user data they receive.

During Judiciary consideration, an amendment to allow less specific reporting was added back into the bill, but some worry that provision is in danger now because the administration thinks it’s already reached a deal that allows tech companies to publish more information about the NSA requests.

While pro-reform advocacy groups and members hailed the House bill as a positive first step, many lamented the revisions and said the legislation will be in trouble on the floor if it undergoes further changes.

A Deep Dive into the House’s Version of Narrow NSA Reform: The New USA Freedom Act

By Mark Jaycox, Electronic Freedom Foundation

Here’s how the House version of the USA Freedom Act compares to the Senate’s version, what the new House version of the USA Freedom Act does, and what it sorely lacks.

The Senate’s Version of USA Freedom Act

As we mentioned when the original USA Freedom Act was first introduced, it proposed changes to several NSA activities and limited the bulk collection of all Americans’ calling records. It would fix a key problem with Section 702 (.pdf) of the Foreign Intelligence Surveillance Amendments Act (FISAA), bring more transparency to the Foreign Intelligence Surveillance Act Court (FISA court), and introduce a special advocate to champion civil liberties in the FISA court.

The House’s New Version of the USA Freedom Act:

The new USA Freedom Act concentrates on prohibiting the collection of all Americans’ calling records using Section 215 of the Patriot Act. Other sections of the bill would allow the FISA Court to assign amici, or non-parties who can brief issues before the court; create new government reports about the spying powers; and create new company reports detailing how many accounts and customers are affected by FISA Court orders.

First and foremost, the bill introduces a different conceptual approach to prohibiting mass spying under Section 215. Unlike the Senate version, which tries to stop the mass collection of calling records by mandating that the records sought “pertain to” an agent of a foreign power or their activities-an approach that we’ve worried about because “pertains to” and “relevant” are so similar-the House version mandates that a “specific selection term” (currently defined as uniquely describing a person, entity, or account) be the “basis for the production” of the records. The overall language may be stronger than in the old USA Freedom Act, but “specific selection term” must be further defined as “entity” could be construed expansively. After the order is filed, the government can obtain up to “two hops“-which may be too expansive for many investigations-from the selection term.

The bill also tries to tighten the “minimization procedures” that apply to government collection of records using Section 215 and other spying authorities like national security letters and the FISA Pen Register/Trap and Trace (PR/TT) provision. But the procedures only touch the FBI, not other agencies-like the NSA-that may be obtaining records using Section 215. In addition, the House version uses language we’ve seen in Section 702’s minimization procedures. If you remember, those procedures are horrendous. They allow for the overcollection, overretention, and oversharing of Americans’ communications “mistakenly” collected. The House must draft stronger minimization language to completely ensure improper information about untargeted users is not collected. For instance, simply inserting the word “acquisition” or “collection” would help.

End the NSA’s Mass Spying

Tell Congress: Support the USA FREEDOM Act. Stop the FISA Improvements Act & Other Fake Reforms.

There’s a powerful reform proposal moving through Congress. H.R. 3361, the House’s version of the USA FREEDOM Act, would limit bulk collection of phone records and add transparency to the egregious NSA spying.

If it passes, the USA FREEDOM Act will be the most meaningful reform of government surveillance in decades. While the USA FREEDOM Act doesn’t address every issue with NSA surveillance, it’s a powerful first step.

But certain members of Congress don’t want reform. Representatives Mike Rogers and Dutch Ruppersberger have introduced a bill that attempts to make NSA spying worse. And Senator Dianne Feinstein is promoting the FISA Improvements Act, a bill posing as reform that attempts to legalize the worst aspects of NSA surveillance.

We can’t let NSA apologists preserve the status quo. Demand real reform.  Stop mass spying.

May 20

Glenn Greenwald “No PlaceTo Hide”

“No place to hide”

Chris Hayes talks with Glenn Greenwald about his new book and new NSA revelations from his book “No Place to Hide.”


Hating on Glenn Greenwald

Chris Hayes gets journalist Glenn Greenwald to open up about his tendency alienate liberals.

May 14

“No Place to Hide” Part 2

Journalist, author and constitutional lawyer Glenn Greenwald’s new book “No Place To Hide” was released this week and Glenn has been on the interview circuit discussing the book, Edward Snowden and the next set of revelations about the NSA spying. In an interview with GQ magazine, he talks about what a whirlwind this last year has been as the hottest story in the world has unfolded:

Glenn Greenwald is trying to lose fifteen pounds. “Um, it’s been a little crazy these past nine months,” he says. “And I will eat French fries or potato chips if they’re in front of me.” On his porch, perched on a jungle mountaintop in Rio, the morning is fresh. Greenwald, in board shorts and a collared short-sleeve shirt, has done his daily hour’s worth of yoga and attached himself to one of his five laptops as his dozen dogs yap and wag to begin the day’s circus in his monkey-and-macaw paradise.

To put it simply, Greenwald has had one hell of a dizzying run. The Bourne plotline is familiar now: In late 2012, a shady contact calling himself Cincinnatus reached out via e-mail with the urgent desire to reveal some top-secret documents. As a blogger, author, and relentless commentator on all things related to the NSA, Greenwald had been here before. He figured it was a setup, or nut job, and disregarded the message. The source then contacted Greenwald’s friend Laura Poitras, an Academy Award-nominated documentary filmmaker, and sent along a sample of encrypted documents. Poitras got in touch with Greenwald immediately: Not only did this seem like a potential jackpot, she said, but Cincinnatus wouldn’t go ahead until Greenwald had been looped in.

Soon, per the source’s instructions, they were on a plane to Hong Kong. Greenwald and Poitras did exactly as they were told, showing up at the Mira hotel at 10:20 a.m. on June 3, in front of a giant plastic alligator, looking for a man holding a Rubik’s Cube. “I thought he would be a 60-year-old senior NSA guy,” says Greenwald. And then here’s this pale, stringbeany kid with glasses, “looking all of twentysomething.” This, of course, was the 29-year-old NSA contractor Edward Snowden. Once they retired to his hotel room, he turned over an estimated tens of thousands of documents, the vast majority of them classified “Top Secret,” comprising arguably the biggest leak of classified material in U.S. history. After days of intensive work with Greenwald and Poitras, Snowden fled-just minutes ahead of the press-only to reappear in Moscow.

This left Greenwald with the most exhilarating and daunting task of his career: to figure out how to curate and publish the vast Snowden archive in his Brazilian self-exile. Once he began, his work triggered an avalanche of articles that branded him a hero, a traitor, a collaborator. In one fell swoop, he had piqued and scandalized and provoked the world into a deeper debate about not just surveillance and privacy but power and truth. The odyssey eventually led him from The Guardian, where the first articles appeared revealing the NSA’s secret surveillance of Verizon records, to his central position in Pierre Omidyar’s $250 million muckraking gambit known as First Look Media and The Intercept, where Greenwald is figurehead, main attraction, and blogitor-in-chief.

The Guardian has a excerpt from the book describing the first hectic days following the first meeting with Mr.Snowden in Hong Kong:

On Thursday 6 June 2013, our fifth day in Hong Kong, I went to Edward Snowden’s hotel room and he immediately said he had news that was “a bit alarming”. An internet-connected security device at the home he shared with his longtime girlfriend in Hawaii had detected that two people from the NSA – a human-resources person and an NSA “police officer” – had come to their house searching for him.

Snowden was almost certain this meant that the NSA had identified him as the likely source of the leaks, but I was sceptical. “If they thought you did this, they’d send hordes of FBI agents with a search warrant and probably Swat teams, not a single NSA officer and a human-resources person.” I figured this was just an automatic and routine inquiry, triggered when an NSA employee goes absent for a few weeks without explanation. But Snowden suggested that perhaps they were being purposely low-key to avoid drawing media attention or setting off an effort to suppress evidence.

Whatever the news meant, it underscored the need for Laura Poitras – the film-maker who was collaborating with me on the story – and I to quickly prepare our article and video unveiling Snowden as the source of the disclosures. We were determined that the world would first hear about Snowden, his actions and his motives, from Snowden himself, not through a demonisation campaign spread by the US government while he was in hiding or in custody and unable to speak for himself.

Our plan was to publish two more articles on the NSA files in the Guardian and then release a long piece on Snowden himself, accompanied by a videotaped interview, and a printed Q&A with him.

Poitras had spent the previous 48 hours editing the footage from my first interview with Snowden, but she said it was too detailed, lengthy, and fragmented to use. She wanted to film a new interview right away; one that was more concise and focused, and wrote a list of 20 or so specific questions for me to ask him. I added several of my own as Poitras set up her camera and directed us where to sit.

Along with the release of the book, Glenn has also released more documents which Kevin Gosztola summarizes at FDL’s Dissenter.

This is the second part of Glenn’s interview with Democracy Now!‘s Amy Goodman to discuss the book his book. The first part are here.

May 08

The Debate on State Surveillance

Cross posted from The Stars Hollow Gazette

Last weekend the journalist and constitutional lawyer Glenn Greenwald teamed up with Reddit co-founder Alexis Ohanian to debate state surveillance with former NSA and CIA chief Michael Hayden and Harvard law professor Alan Dershowitz. Greenwald and Ohanian will argued against the motion “be it resolved state surveillance is a legitimate defense of our freedoms.” The event was organized by Munk Debates and held in Toronto, Canada.

Glenn just devastated Hayden and Dershowitz.

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