Cross posted from The Stars Hollow Gazette
Here are some of the good guys in Congress who are trying to protect our freedoms under the Fourth Amendment:
Sen. Jeff Merkley (D-OR)
Sen. Ron Wyden (D-OR)
Merkley Introduces Bill to Prevent Warrantless Surveillance of Americans
Under amendments to FISA passed during the Bush administration, the intelligence agencies may conduct warrantless wiretapping, potentially collecting vast amounts of communications and data, so long as they reasonably believe the communications involve individuals who are located outside of the United States and who are not U.S. citizens. However, there are loopholes in the current statute that could permit the intelligence community to intentionally or unintentionally collect and store the communications of American citizens and others living in the U.S. and to mine data collected from Americans without a warrant. National security agencies have not even released estimates of how often Americans’ communications are swept up by the warrantless wiretapping program. [..]
“Keeping Americans safe versus protecting American’s privacy is a false choice. We have a moral and Constitutional duty to do both,” Merkley said. “We can ensure our government has the tools to spy on our enemies without giving it a license to intrude into the private lives of American citizens. This bill will establish new safeguards to respect the principles of the Fourth Amendment protections from government intrusion without a warrant while ensuring that the intelligence community has the tools it needs to combat terrorism.” [..]
“This bill will give the FISA Amendments Act the overhaul it so desperately needs, restraining the government from unconstitutionally collecting and using vast amounts of data about innocent Americans,” said Michelle Richardson, ACLU Legislative Counsel. “These amendments would allow collection against foreigners to continue while better protecting Americans and should be considered a win-win for both the intelligence community and the Constitution.”
Wyden Places Hold on FISA Amendments Act Extension
Warns that Loophole Gives Government the Ability to Circumvent Warrant Requirements to Spy on U.S. Citizens
Wyden identified two specific concerns that he believes Congress must address before agreeing to a long-term extension of FAA’s authorities.
The first pertains to the lack of information regarding the number of law-abiding American citizens who have had their communications collected and reviewed under the FISA Amendments Act authorities. Last Summer, he and Senator Mark Udall asked the Administration for an estimate of the “number of people located in the United States whose communications were reviewed by the government pursuant to the FISA Amendments Act.” The Office of the Director of National Intelligence responded that it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.” Nearly a year later, Congress has yet to receive an estimate of the number of Americans who have had their communications collected under FAA.
“The purpose of this 2008 legislation was to give the government new authorities to collect the communications of people who are believed to be foreigners outside the United States, while still preserving the privacy of people inside the United States,” Wyden explains in his hold statement. “Before Congress votes to renew these authorities it is important to understand how they are working in practice. In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.”
Wyden’s second concern pertains to what he describes as the law’s inadequate protections against warrantless “back door” searches of Americans.
“I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act,” Wyden writes. “Then it is possible that this number could be quite large. Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.“
David Kravets alerts us to a proposal (pdf) by Rep. Jerrold Nadler (D-NY) and Rep. John Conyers Jr. (D-MI) that require the government to obtain a probable-cause warrant to access data stored in the cloud:
The law that the measure would amend is the Electronic Communications Privacy Act, which has seen few updates following President Ronald Reagan’s 1986 signature on the measure.
The proposal represents yet another attempt to rewrite legislation that generally grants the government wide powers to access Americans’ cloud-stored data without a probable-case showing. [..]
Adopted when CompuServe was king, ECPA allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed, as long as the content had been stored on a third-party server for 180 days or more. E-mail and other cloud-stored data younger than six months is protected by the warrant requirement, as is all data stored on a personal computer drive.
ECPA was adopted at a time when e-mail, for example, wasn’t stored on servers for a long time. Instead it was held there briefly on its way to the recipient’s inbox. E-mail more than six months old on a server was assumed abandoned, and that’s why the law allowed the government to get it without a warrant. At the time there wasn’t much of any e-mail for the government to target because a consumer’s hard drive – not the cloud – was their inbox.
But technology has evolved, and e-mail often remains stored on cloud servers indefinitely, in gigabytes upon gigabytes – meaning the authorities may access it without warrants if it’s older than six months.
The same rule also applies to content stored in the cloud. That includes files saved in Dropbox, communications in Facebook, and Google’s cloud-storage accounts. Such personal storage capabilities were nearly inconceivable when President Reagan signed the bill.
The proposal will probably never be even heard in the radical right wing House committee. Kravets notes that a similar proposal in the Senate by Sen. Patrick Leahy (D-VT) never even got a hearing in the Judiciary Committees that Leahy chairs.
While the Obama administration continues to carry out and expand the Bush/Cheney regime agenda and the obstructionist Republicans and Right wing Democrats unwittingly (or not) help him, there are some people who recognize that security and freedom are not mutually exclusive.