USA Liberty Act Would Compromise Privacy

November 10, 2017

As Congress debates the “USA Liberty Act”, it is important to consider the implications for warrantless, back-door searches. The following information comes from the Brennan Center (https://www.brennancenter.org/blog/congress-cant-compromise-privacy); the entire article is worth reading to fully understand the importance of this issue and Section 702.

[T]he problem with the USA Liberty Act’s solution is not simply that it does not go far enough. In two key respects, it actually represents a step backward.

First, it would put Congress’s stamp of approval on backdoor searches. As it stands, Section 702 does not expressly authorize agencies to search for Americans’ communications. Indeed, the practice seems inconsistent with the law’s prohibition on targeting Americans, not to mention its requirement that the government minimize the retention and use of Americans’ communications. By codifying backdoor searches for foreign intelligence purposes, the USA Liberty Act would make the law worse, even if it improved on the government’s actual practice.

Even more worrisome, the USA Liberty approach would introduce a new and dangerous principle into the law: the notion that Americans have lesser rights when the government is acting with a “foreign intelligence” purpose. Currently, if the government wants to target an American directly for surveillance, it must obtain a warrant regardless of its motive. In criminal cases, the government typically obtains the warrant from a magistrate judge, while in foreign intelligence investigations, it applies to a special court known as the FISA Court. In both cases, however, the government must show probable cause of illicit activity.

There is no principled basis for lowering the standard of protection in foreign intelligence cases and allowing the government to access through the back door what it could not obtain through the front.

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Permanent mass surveillance, “LIBERTY”, or real reform? FISA 702 reauthorization update

October 8, 2017

end-702

With only a few months left before the deadline to reauthorize Section 702 of the FISA Amendments Act, the battle lines are starting to shape up.   FISA provides the legal basis for warrantless surveillance, and when it was originally passed over strenuous objections from civil libertarians in 2008, it included a “sunset clause”.   After being extended once in the lame-duck session in late 2012, Section 702 will sunset if it’s not reauthorized again by the end of the year.

After a year of high-profile coverage of the pitfalls of mass surveillance, and a lot of criticism of intelligence agency abuse and incompetence across party lines, you’d think that there would be bipartisan interest in getting some meaningful reforms.  So far, though, the two options on the table are “bad” and “worse”:

Sigh.  EFF’s Pull the Plug on Internet Spying Programs offers an easy way to contact your Congresspeople.  And, if you’re calling for some other reason, take a few minutes to ask them to oppose USA LIBERTY, reauthorization without change, and making 702 permanent.

But, it’s far from over.  Encouragingly, Ron Wyden and Rand Paul are planning to introduce an amendment to require a warrant for searches of incidentally collected information – a reform supported by a broad alliance of human rights and civil liberties organizations.*   And especially if that amendment isn’t adopted, it’s possible that either the House or the Senate won’t pass an extension – which would be a very good thing for civil liberties.

People holding up signs saying "Stop Spying On Us"

Activists oustide the FISA Court, September 2017 (via Demand Progress)

EFF’s excellent resource on Decoding 702 has a good overview of the problems with FISA 702.  When Get FISA Right first started almost a decade ago, a lot of these seemed hypothetical.  In 2017, thanks to General Flynn, Paul Manafort, and the DC culture of leaking, real-world examples are in today’s headlines.   As a result, a lot of Republicans who previously have been pro-surveillance are having some qualms as well about the issues civil liberties advocates have focused on for years.  For example:

The battle over Patriot Act reauthorization in 2015 showed that the alliance of progressives, libertarians, and Tea Partiers is strong enough to have an impact if they stick to their guns.   Lawfare‘s detailed analysis of support for Section 702 in the Senate suggests that in addition to Rand Paul, up to a dozen Republican Senators might not support reauthorization without reforms.  Then again, there are quite a few Democratic Senators who routinely support mass surveillance.

Back in April I wrote

When the bills start to move forward and activists crank up “call your representatives!” campaigns, it might well be the first time Indivisible and the Tea Party find themselves on the same side of an issue — working with the Center for Media Justice, Cato Institute, the American Library Association, and other strange bedfellows. For the first time in years, the political winds may actually be aligning for surveillance reform. And there’s certainly a lot of grassroots energy out there.

Since then, grassroots activism has really showed its strength on other issues – most notably the health care battle.  Indivisible, with its emphasis on creative protests and in-person meetings with staffers as well as phone campaigns, is particularly well-positioned  to pressure wimpy Democrats to hold the line on civil liberties – and to build on its successes pressuring potentially-wavering Republicans.  Center for Media Justice and Color for Change have built deep connections with the civil liberties community. Longtime stalwarts like EFF, ACLU, Defending Rights & Dissent, and the ALA – and grassroots civil liberties groups like Restore the Fourth and Get FISA Right – continue to fight as well.  Will it be enough?

Stay tuned – and get involved!

Also posted on Medium.

NSA vs. USA, by Shahid Buttar

 


 

* Including EFF, Center for Media Justice, Color of Change, the Arab-American Anti-Discrimination Committee, the ACLU, the American Library Association, Restore the Fourth, Defending Rights and Dissent, EPIC, CDT, the National Center for Transgender Equality, the NAACP, the National Immigration Law Center, and Demand Progress.  Broad-based indeed!


FISA 702 Reauthorization: The Fight Against Mass Surveillance Continues

April 2, 2017

Almost a decade after Get FISA Right was born, Section 702 of the FISA Amendments Act is once again up for reauthorization. FISA provides the legal basis for warrantless surveillance, and when it was originally passed over strenuous objections from civil libertarians in 2008, it included a “sunset clause”. After being extended once in the lame-duck session in late 2012, Section 702 will sunset if it’s not reauthorized again by the end of the year.

Stop Watching Us demonstration in DC, 2013, photo from the Daily Mail

As usual, the White House is pushing for a “clean reauth” — extending the provisions without any further reforms. As usual, civil libertarians across the political spectrum are pushing for reform. As usual, the government is saying they can’t even count how many Americans are swept up in target coverage. As usual, Ron Wyden is concerned and speaking out.

But there are some big differences this time around.

Read the rest of this entry »


Disinformation and Propaganda Amendment to Defense Authorization

December 26, 2016

This is not directly related to our core FISA issue of warrantless wiretapping, but it is clearly of importance to those of us who appreciate truth in media and journalistic standards that include independence and honesty, who prefer our editorial opinions on the Op-Ed page (or Web0site equivalent), not disguised as “hard news”, which we expect to be fact-based reporting.

It was called the “Ministry of Truth” by George Orwell, and some suggest that it is coming to the U.S.A. State Department,  authorized by an amendment to a defense authorization bill that allows the federal government to spread propaganda not just internationally, as it has long done, but also domestically‚ to U.S.A. citizens, using materials created for foreign audiences in support of government policies that might be unpopular here at home—wars, for instance.

The bipartisan bill, which was introduced by Senators Portman and Murphy in March, will . . . .establish an interagency center housed at the State Department to coordinate and synchronize counter-propaganda efforts throughout the U.S. government. To support these efforts, the bill also creates a grant program for NGOs, think tanks, civil society and other experts outside government who are engaged in counter-propaganda related work. (http://www.zerohedge.com/news/2016-12-24/obama-signs-countering-disinformation-and-propaganda-act-law)

Here is an article with more information: http://vigilantcitizen.com/latestnews/new-bill-legalizes-government-propaganda-and-disinformation-on-american-citizens/

and, from that article, this:

The bill’s supporters say the informational material used overseas to influence foreign audiences is too good to not use at home, and that new techniques are needed to help fight Al-Qaeda, a borderless enemy whose own propaganda reaches Americans online.

Critics of the bill say there are ways to keep America safe without turning the massive information operations apparatus within the federal government against American citizens.

This amendment would

essentially neutralize two previous acts—the Smith-Mundt Act of 1948 and Foreign Relations Authorization Act in 1987—that had been passed to protect U.S. audiences from our own government’s misinformation campaigns.

Interestingly, the Smith-Mundt Act was passed shortly after the end of World War II—presumably to rein in the war-propaganda machine?

It seems to me that something so substantial deserved more attention than it was given, both when passed by the Senate back in March and at its passage by the House of Representatives on the Friday before Christmas and quick signature by the president that same day.  It is disturbing that this was quietly done, as described in that same article:

“I just don’t want to see something this significant – whatever the pros and cons – go through without anyone noticing,” says one source on the Hill, who is disturbed by the law. According to this source, the law would allow “U.S. propaganda intended to influence foreign audiences to be used on the domestic population.”

The new law would give sweeping powers to the government to push television, radio, newspaper, and social media onto the U.S. public. “It removes the protection for Americans,” says a Pentagon official who is concerned about the law. “It removes oversight from the people who want to put out this information. There are no checks and balances. No one knows if the information is accurate, partially accurate, or entirely false.”

In a society that relies so completely on checks and balances, on oversight, it is troubling in the extreme to see current limitations removed—particularly just before the inauguration of a president-elect noted for misrepresentations and extremist rhetoric in his use of media.


GPS Privacy Legislation after the PATRIOT Act

November 26, 2016

This post is more a request for information than a provision of same.

I was discussing cell-phone privacy, and a friend mentioned that since the World Trade Center attacks all cell phones have GPS location devices that are trackable even when off.  I was not sure of the accuracy of that statement (though we all know that the so-called PATRIOT Act was a vast overreaction and overreach), so I went hunting for current law.

I did not find much; I did find a government site from 2014 that had a link to a page about pending legislation; that page was updated 2 months ago (28 Oct. 2016).  Here is the link:
http://www.gps.gov/policy/legislation/gps-act/

The original page (www.gps.gov/policy) also had information on the 2012 Jones decision and on lower-court rulings, including one that required a warrant for GPS-based vehicle trackers (later vacated and to be reheard, according to the site today [26 Nov. 2016]).

I think we have some work to do, between all the other ball-juggling that is happening: Electoral College, vote recounts, proposals for mass registration and deportations, Dakota Access water-protector repression, racist appointments, etc.  Already, many folks are talking about the need for encrypting e-mails and phone conversations/messages—is that actually useful, or just an illusion because Internet Service Providers give everything to the government, anyway?


Anniversary on the Eve of an Election

October 25, 2016

Today is an important anniversary: 15 years ago on October 25, Senator Russ Feingold was the lone senator to vote against the so-called PATRIOT Act. GetFISARight was not yet a group then; the FISA vote that sparked our formation was far in the future. Now, we are little more than a WordPress site and a Twitter account—and Russ is running to take back his seat. When Sen. Feingold ran for reëlection in 2010 at the height of the Tea Party movement, this group actively supported him; we and many others were disapointed when his principled refusal to take DNC or SuperPAC money resulted in a loss. (Remember, with John McCain in earlier days [2002], he cowrote the McCain-Feingold Act [a.k.a. the Bipartisan Campaign Reform Act]; holding true to his principles was certainly a factor in, if not solely responsible for, costing him his reëlection).

Now, Sen. Feingold is looking to return to Washington, and despite what we have learned about the abuse and misuse of a bill rushed through just weeks after the shock of “9/11”, as that horrible series of events has come to be called, he is still being criticized for refusing his vote on that day. Despite improvements in the originally-proposed text, he stood by his defense of the need for proper process even, maybe especially, in dangerous times.

So, here we are approaching Election Day 2016; standing by our previous endorsement (without consultation with my colleagues on this page, as we are rarely in touch, but with trust that they agree), I encourage all to celebrate this anniversary by doing something to support Russ Feingold’s campaign—send an e-mail, make a call, post a Tweet, send a dollar to Russ’s campaign, make a profile picture honoring his integrity—your choice!
Here is a link to an article about his electoral race: http://tinyurl.com/zl7by8p

For those Bernie Sanders fans among us, here is a quotation from that article:

On Oct. 5, during a speech in Madison, Sanders said “Russ and I have worked together for years and I can not wait, believe me, to see him back at my side in the U.S. Senate. And when we talk about issues you, what you know, and what Russ know’s is this movement towards oligarchy. There are too many billionaires controlling this country. The Koch brothers and others have bought the United States Government.” Sanders continued, “Maybe I’m old fashioned but I kind of believe democracy is one person one vote, not billionaires electing their candidates.”

I remain on Senator Feingold’s e-mail list to this day; unable to find this text elsewhere in order to link to it, I reproduce it here:

On this day 1‌5 yea‌rs ago, I was the sole member of the United States Senate to vote against the Patriot Act. And, 1‌5 years later, I am still being attacked for my vote.

When I cast that vote, only si‌x we‌eks had passed since the horrendous attacks on 9‌/‌11. Initially, I wanted to vote for an early version of the bill, which I believed protected individuals civil liberties while also updating our laws to account for new technologies.

But then, the Bush administration held secret meetings, took shortcuts, and introduced a new version of the Patriot Act that couldn’t be changed. This isn’t how our democracy should operate: Behind closed doors and without transparency. It was outrageous.

The final version of the Patriot Act gave the federal government far too much power to spy on the American people. Congress held its breath and crossed its fingers that this power wouldn’t get abused, and the bill was passed.

When I voted no, I voted my conscience, and I voted to do right by the people of Wisconsin and the people of America. I voted no because national security and civil liberties should not be mutually exclusive — and should be beyond partisan politics.

Now, 1‌5 ye‌ars later, Senator Ron Johnson and his allies are still attacking my vote against the Patriot Act. If Senator Johnson and his super PACs were listening to the people of Wisconsin, they would know one thing: their attacks won’t work.

There are just over tw‌o wee‌ks left in this campaign. It’s going to take the full force of this grassroots team to combat all these outrageous right-wing attacks and win this race.

I did not include the donation link, but Sen. Feingold’s campaign site is russfeingold.com

My penultimate item is a link to the text of Sen. Feingold’s speech 15 years ago: http://tinyurl.com/zl7by8p

Then, I close with a section of Sen. Feingold’s speech—the section on the specific cause that brought this group together, getting FISA right:

I am also very troubled by the broad expansion of government power under the Foreign Intelligence Surveillance Act, known as FISA. When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in foreign intelligence investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. There is a lower threshold for obtaining a wiretap order from the FISA court because the FBI is not investigating a crime, it is investigating foreign intelligence activities. But the law currently requires that intelligence gathering be the primary purpose of the investigation in order for this lower standard to apply.

This bill changes that requirement. The government now will only have to show that intelligence is a “significant purpose” of the investigation. So even if the primary purpose is a criminal investigation, the heightened protections of the Fourth Amendment won’t apply.

It seems obvious that with this lower standard, the FBI will try to use FISA as much as it can. And of course, with terrorism investigations that won’t be difficult, because the terrorists are apparently sponsored or at least supported by foreign governments. This means that the fourth amendment rights will be significantly curtailed in many investigations of terrorist acts.

The significance of the breakdown of the distinction between intelligence and criminal investigations becomes apparent when you see the other expansions of government power under FISA in this bill. One provision that troubles me a great deal is a provision that permits the government under FISA to compel the production of records from any business regarding any person, if that information is sought in connection with an investigation of terrorism or espionage.

Now we’re not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect.

But under this bill, the government can compel the disclosure of the personal records of anyone – perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by — the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That’s it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

Onward together!


Please Sign: An e-mail message from Ron Wyden

October 5, 2016

The group that originally began this Web site/blog was concerned with the expansion of government surveillance outside that allowed by the FISA Court; then-Senator Obama voted in favor of warrantless wiretapping in July 2008, and as his administration closes 8 years later it seems that the FBI is about to get new surveillance abilities. We supported Barack Obama in 2008, drifted away to various degrees by 2012, and largely moved on to individual projects. However, when something related comes up, one of us will pop over here to spread the word. Here is the correspondence from Sen. Wyden:

An obscure committee in the federal bureaucracy recently voted to allow the FBI to hack into your personal devices and access your personal data without obtaining an individual warrant to do so.

The changes approved by the Judicial Conference Advisory Committee on Criminal Rules to what is known as “Rule 41” would allow the government to get a single warrant to hack into an unlimited number of computers and digital devices owned by law-abiding Americans if their device was merely affected by criminal activity.

This dramatic and constitutionally questionable expansion of the government’s hacking and surveillance authority is poised to go into effect on December 1 – unless Congress acts. Such a change should be debated by Congress in the light of day – not handed down by unelected bureaucrats.

Here is the link to Sen. Wyden’s petition: https://standtallforamerica.com/petition/stop-mass-hacking/e/