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!


Get FISA Right among 115 organizations demanding surveillance reform

June 19, 2013

Dear Members of Congress,

We write to express our concern about recent reports published in the Guardian and the Washington Post, and acknowledged by the Obama Administration, which reveal secret spying by the National Security Agency (NSA) on phone records and Internet activity of people in the United States.

The Washington Post and the Guardian recently published reports based on information provided by a intelligence contractor showing how the NSA and the FBI are gaining broad access to data collected by nine of the leading U.S. Internet companies and sharing this information with foreign governments. As reported, the U.S. government is extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person’s movements and contacts over time. As a result, the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with a terrorist organization.

Leaked reports also published by the Guardian and confirmed by the Administration reveal that the NSA is also abusing a controversial section of the PATRIOT Act to collect the call records of millions of Verizon customers. The data collected by the NSA includes every call made, the time of the call, the duration of the call, and other “identifying information” for millions of Verizon customers, including entirely domestic calls, regardless of whether those customers have ever been suspected of a crime. The Wall Street Journal has reported that other major carriers, including AT&T and Sprint, are subject to similar secret orders.

This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution, which protect citizens’ right to speak and associate anonymously, guard against unreasonable searches and seizures, and protect their right to privacy.

We are calling on Congress to take immediate action to halt this surveillance and provide a full public accounting of the NSA’s and the FBI’s data collection programs. We call on Congress to immediately and publicly:

1. Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

2. Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;

3. Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.

Thank you for your attention to this matter.

Sincerely,

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Well, here we are.

May 26, 2011

Down to the wire.  I am as guilty, or guiltier, than anyone reading this.  Yes, I have been active on some issues.  Yes, others have fallen through the cracks.  When the final vote is taken, if it is not over as I write this, it will in part be my fault.  If there is still time,   CALL! WRITE! E-MAIL!  I will be doing so later tonight.

We had three months.  It is virtually gone.  Support Russ FEiongold for senator or governor, should there be a recall election, support Al Franken on virtually everything he does, and even thank Rand Paul for being a holdout on this.  There are some things that Libertarians have absolutely right.


Take Action! On April 5, call the White House to demand PATRIOT Act reform!

March 30, 2011

EFF logo

On April 5, 1792, President George Washington vetoed a bill — the first time in U.S. history that the presidential veto was exercised. On the anniversary of this day, we’re calling on Barack Obama to exercise his presidential powers to veto any PATRIOT Act renewal bill that does not include powerful reforms to safeguard civil liberties.

EFF’s action alert

As a candidate, Obama repeatedly promised to reform the PATRIOT Act.  He also promised Get FISA Right, in his response to our open letter, that he’d ask for “recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”  With the battle in Congress over key clauses of the PATRIOT Act heating up again, now’s a great time to ask him to live up to his campaign promises.

The legislative situation is very fluid.  Legislation in the House is likely to drop soon.  In the Senate, Leahy’s S. 193 will be the basis for a floor debate, with amendments likely to be proposed by both sides.  The Obama Administration supports S.193, but many privacy and civil liberties organizations support the JUSTICE Act’s much stronger protections, including better oversight of the use of national security letters (NSLs) as repeatedly recommended by the Department of Justice’s Inspector General, more effective checks on “sneak and peek” searches , and roving wiretaps, and revising the “material support” standard to require that prosecutors prove that defendants knowingly intended their support to further violent extremism.

By taking a strong stand for civil liberties, Obama could help shape the upcoming Congressional debate.

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Why the Patriot Act Is Anything But (patriotic)

February 8, 2011

Before I go further (or, in fact, anywhere at all), we cordially offer an invitation: Join us as the House of Representatives takes its historic vote on Tuesday evening.
And to get up to speed on just how important this all is, check out our own (we proudly claim him as such) Chip Pitts’ interview on C-SPAN. Spoiler: all but one of the calls in the Q&A portion were from people—R, D, and I—opposed to or concerned about the ramifications of the Patriot Act. Now, if we can convince Congress. . . .
When the United States Constitution was presented to the states in 1789, many found that it did not go far enough in protecting the rights of individuals; a number, New York prominent among them, refused to ratify it without these retained rights spelled out. Although the underlying principle was that people possess all rights except those that they voluntarily surrender to their duly elected government, the AntiFederalists were afraid of a creating a strong centralized government without explicit restraints on its power. Hence the Bill of Rights—the first 10 amendments to the Constitution, which collectively limit the power of the government and spell out those rights most important to the citizens of the day, including (but not limited to) the right of assembly, freedom of the press, freedom of religion, the right to bear arms, freedom from unreasonable search and seizure, and the right to a trial by a jury of one’s peers. For more than two centuries we have held those rights close, considering them imperative in a free democratic republic.
Fast forward 220 years, and those rights are still crucial to such a society. In an age with many more means of communication than the 18th-century systems of face-to-face and via printed word, and with more possible intrusion into individual action than our founders could have imagined—radio, telephone, television, photography, video, Internet, WiFi, Facebook, Twitter—how is it possible to safeguard those rights? How can we ensure that our government obeys its own laws and, while empowered to responsibly chase criminals and true terrorists, is not allowed to interfere needlessly with the rights of law-abiding persons?
I submit that the worst possible way of moving forward at this time would be to extend the sunset date of the Patriot Act, or any of its provisions. Written after one of only two attacks by foreign citizens within our nation’s borders (the other being Japan’s attack on Pearl Harbor in December 1941, “a day that will live in infamy”), the Patriot Act was passed in immediate response to a stunning event, at a time when nobody was sure whether the plane attacks were the extent of the terrorists’ plan, or whether more incidents were in the works.
It could be argued that the Patriot Act was not a bad idea in late 2001. However, it is not clear that, even had it been already in place, the human errors that allowed the “9/11” attacks to occur would have been prevented. More important, we have learned that, in the past 10 years, the Patriot Act has been sorely abused by government agencies. The Department of Justice reports that the FBI has misused its Patriot-Act powers to commit some 40,000 illegal acts; after auditing only 10% of national security violations, the Electronic Frontier Foundation found as many as 3000 illegal uses of national security letters (NSLs), including accessing password-protected documents without a warrant, submitting false or inaccurate declarations to courts, and using improper evidence to obtain federal grand-jury subpoenas (Downsizer Dispatch E-mail of 4 Feb. 2011, quoting a report by the Electronic Frontier Foundation (www.eff.org), titled Patterns of Misconduct: FBI Intelligence Violations from 2001 – 2008).
Where are we now? Three provisions of the Patriot Act are scheduled to expire at the end of this month. They are
Lone wolf: Allows the government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group.
The problem here is that no reason need be given to track a target; it is easy to see how this could be misused for purposes other than seeking evidence of a criminal plot.
Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide them access to a suspect’s records without the suspect’s knowledge.
This violates the right to privacy that citizens expect.
Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, whether or not others who are not suspects also regularly use them.
Any innocent person using an account shared by someone who is a terrorism suspect, with or without knowledge of possible terrorist intentions, is subject to eavesdropping with out any reason.
Tomorrow, Tuesday, 7 Feb., there is a House of Representatives vote scheduled on H.R. 514, a bill which would extend the Patriot Act as is, including the above provisions. This leaves a bad situation no better. As such, this bill should be defeated.
Later this month, the subject moves to the Senate, where the best of an admittedly bad lot is Sen. Leahy’s S. 193, the only bill to offer reforms to the Patriot Act as it currently reads. Although there is much to be desired from this bill, we propose that it be supported. Will this close the subject? Certainly not; we seem to be moving gradually away from concerns of civil liberties and individual rights in favor of “security at all costs”. We at Get FISA Right are very concerned with this trend, and pledge to work to keep communication open, government transparent, and individual privacy as intact as possible in this very connected technological age.
We urge you to add your voice to the POPVOX discussion.
See you tomorrow!


What does it mean to “get FISA right”?

March 4, 2009

Thanks to Jim Burrows for taking the lead and kicking off a series of posts on this difficult subject.  With the Obama DOJ currently mirroring the Bush Administration’s stance, we see it as increasingly likely that the issue of FISA is going to come up in Congress relatively soon.  So now’s a great time to start framing the issue positively and proactively: what outcome do we want?  We’ll update this post with links to future posts in the series … more details soon! — Jon Pincus

As a member of “Get FISA Right”, I find myself asking, “What does ‘get it right’ mean?” I don’t have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.

The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation’s foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.

To “get it right”, let me suggest that we need:
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