Tag: Warrantless Wiretapping

Cross posted from The Stars Hollow Gazette

While Congress is stalled on the great fiscal myth negotiations, on thing that both houses are have agreed is unconstitutional, warrantless surveillance. This morning, the Senate extended Foreign Intelligence Surveillance Act (FISA) for another five years, rejecting amendments that would have reined in some of the worst abuses. The White House had pushed for a quick, “clean” reauthorization without any amendments before the bill’s Dec. 31 expiration date. The amended FISA was passed in 2008 to retroactively cover Bush-era domestic surveillance and give immunity to the telecommunication companies that participated.

Kevin Gosztola at FDL‘s Dissenter summarizes the amendments that were defeated:

the Senate voted on amendments put forward during the day’s debate: (Sen. Ron) Wyden’s oversight and transparency amendment, which would request a rough estimate or any information the NSA has on the collection of Americans’ communications; the (Sen Jeff) Merkley FISA Court Amendment, which would require FISA court rulings to be declassified in some way and released to the public; the (Patrick) Leahy Sunset Amendment, which would shorten the length of the law’s reauthorization to three years; and an amendment put forward by Sen. Rand Paul to “all US communications, whether sought by US intelligence agencies like the NSA or any government agency, are protected against unwarranted searches and seizures-even if they are held by third party email providers like Google.”

The Leahy Amendment failed to pass 38-52. The Senate voted on Merkley’s amendment immediately after. It failed to pass 37-54. Rand Paul’s amendment (which Feinstein said would’ve repealed the FISA Amendments Act) failed to pass.

The amendment by Sen Ron Wyden (D-OR) was defeated this morning.

Glenn Greenwald at The Guardian describes the Senate floor show by the Democratic Chair of the Senate Intelligence Committee Dianne Feinstein (D-CA) did her best blustering imitation of Vice President Dick Cheney’s fear mongering:

Feinstein insisted that one could support their amendments only if “you believe that no one is going to attack us”. She warned that their amendments would cause “another 9/11”. She rambled about Najibullah Zazi and his attempt to detonate a bomb on the New York City subway: as though a warrant requirement, let alone disclosure requirements for the eavesdropping program, would have prevented his detection. Having learned so well from Rudy Giuliani (and Harry Reid), she basically just screamed “Terrorist!” and “9/11” over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments advocated by Wyden, Merkley, Udall and Paul.

Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, “destroy the program”. But if “the program” is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU’s Richardson noted: “That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that’s being hidden.” In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones’ Adam Serwer similarly asked: “Why, if it’s all on the up and up?”

All of this was accomplished with the core Bush/Cheney tactic used over and over: they purposely waited until days before the law is set to expire to vote on its renewal, then told anyone who wants reforms that there is no time to consider them, and that anyone who attempted debate would cause the law to expire and risk a Terrorist attack. Over and over yesterday, Feinstein stressed that only “four days remained” before the law expires and that any attempts even to debate the law, let alone amend it, would leave the nation vulnerable.

President Obama was opposed to FISA before he voted for it as a senator. This is not the “change” we should be supporting.

Ben Franklin would be disgusted with President Obama and this congress.  

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:

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.

With FISA Deform again imminent, discussion has focused on telecom immunity, Senator Reid’s inexplicable refusal to honor Senator Dodd’s hold, and Senators Clinton, Obama and Biden following Senator Dodd’s lead, in at least attempting to filibuster. In purely electoral terms, this has been one more reason why it is too bad Senator Dodd’s candidacy likely won’t have any impact on the presidential campaign. It is also further proof that we need him to replace Senator Reid, as Majority Leader.

But the real story is still about domestic spying. The real story is still about the Bush Administration breaking a law that was specifically designed to stop abuses of government that had been going on for decades, but most egregiously by the Nixon Administration.

As mcjoan wrote:

The illegal activities of the telcos in aiding our government in domestic, warrantless spying extends far beyond 9/11 and preventing another terrorist attack on the U.S. Not that that was a valid justification for the government to overthrow the rule of law in the first place, but what a cynical effort by this administration to deceive.

Congress should not be voting on any amnesty for the telcos until full investigations of these new revelations have been conducted. The pending legislation on FISA, or at least this provision of it, should be shelved until Congress has a full picture of what these companies have been doing on behalf of our government.

Just so. It’s not only about shielding the telcos for having violated the trust of their customers, and possibly the law, it’s about preventing a full, fair accounting of what exactly the Bush Administration was doing, spying on the American people. The Constitution, the law, history, and the concept of individual privacy demand this accounting. That’s the real story, here.

The project was described in the ATT sales division documents as calling for the construction of a facility to store and retain data gathered by the NSA from its domestic and foreign intelligence operations but was to be in actuality a duplicate ATT Network Operations Center for the use and possession of the NSA that would give the NSA direct, unlimited, unrestricted and unfettered access to all call information and internet and digital traffic on ATT’s long distance network. […]

  The NSA program was initially conceived at least one year prior to 2001 but had been called off; it was reinstated within 11 days of the entry into office of defendant George W. Bush.

http://blog.wired.co…

Bush pushes for telecom immunity
By JENNIFER LOVEN, Associated Press Writer
21 minutes ago

WASHINGTON – President Bush said Wednesday that he will not sign a new eavesdropping bill if it does not grant retroactive immunity to U.S. telecommunications companies that helped conduct electronic surveillance without court orders.

A proposed bill unveiled by Democrats on Tuesday does not include such a provision. Bush, appearing on the South Lawn as that measure was taken up in two House committees, said the measure is unacceptable for that and other reasons.

…

A top Democratic leader opened the door on Tuesday to allowing an immunity provision. But House Majority Leader Steny Hoyer, D-Md., said the Bush administration must first detail what the companies did. About 40 pending lawsuits name telecommunications companies for alleged violations of wiretapping laws.

Bush detailed criteria that the bill must meet before he would sign it, including the immunity provision and the broad requirement that it “ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us.”