Tag: Politics. Fourth Amendment

Last week, Lavabit, the privacy-conscious email service, suspended operations by its owner Ladar Levison while he fights the US government over Constitutional rights in the 4th Circuit Court of Appeals. In his letter to his customers, Mr. Levison wrote

My Fellow Users,

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on–the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States.

Sincerely,

Ladar Levison

Owner and Operator, Lavabit LLC

(emphasis mine)

Lavabit allows its customers send highly encrypted emails that even if intercepted by a third party could not be opened without a password. Based in the US, it is the e-mail service that was allegedly used by whistleblower Edward Snowden.

In an exclusive interview with Amy Goodman on Tuesday’s Democracy Now!, Lavabit owner Ladar Levison and his lawyer, Jesse Binnall discuss why the decision was made to shut down rather than comply with a government order

“I think if the American public knew what our government was doing, they wouldn’t be allowed to do it anymore.

“I mean, there’s information that I can’t even share with my lawyer, let alone with the American public. So if we’re talking about secrecy, you know, it’s really been taken to the extreme.

“And I think it’s really being used by the current administration to cover up tactics that they may be ashamed of.”

~Ladar Levison~

Another encrypted service, Silent Circle has also announced it has shut down. Although it had not yet received any government requests for data, Silent Circle told Tech Crunch that it knew the government would come after them because of the high-profile nature of its users.

“[America’s intelligence gathering] capability at any time could be turned around on the American people and no American would have any privacy left. Such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”

~Sen. Frank Church (D-ID), Meet the Press, August 17, 1975~

Just like the CIA has no clue who they are killing with their “targeted” drone strikes, the NSA has no clue whose data they are mining in the massive collection of Verizon phone records that was authorized in a FISA warrant under Section 215 of the Patriot Act. It was issued in early April shortly after the Boston Marathon Bombing.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

Thanks to Pres. Barack Obama and many Congressional Democrats, and as Alex Pareene at Salon points out, there is nothing we can do about it.

This order went through a FISA Court, according to the rules laid out explicitly by Congress (unlike the Bush administration’s abuses, which were only retroactively authorized). The order could’ve been isolated, or it could’ve been standard practice. We have no way of knowing. And it’s almost definitely not just Verizon. As Marc Ambinder says: “I would assume that these orders are typical and are issued by the FISC to other telephone companies, and possibly to companies that process e-mail as well.” (He also says the order is “at odds with statements from government officials who’ve insisted that the government does not collect all Americans’ phone records just because they can.”) An unnamed expert cited by the Washington Post says the order “appears to be a routine renewal of a similar order first issued by the same court in 2006.”

While the fact that the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primarily issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests that knowing more won’t lead to doing anything about it.

This one cannot be laid solely at the feet of the Republicans. In fact, one of the chief supporters and architect of this latest bill is the senior Democratic Senator from California, Dianne Feinstein, who has criticized her fellow Democratic colleagues for not understanding the threat of terrorism. Today she has been all over the cable channels and traditional MSM defending this massive violation of the Fourth Amendment saying, “This is to ferret this out before it happens. It’s called protecting America.”

She handed out letters she and Sen. Saxby Chambliss (R-Ga.), the top Republican on the committee, wrote to their colleagues in 2010 and 2011 explaining how the program worked, and urging that they support it. Congress did so.

“This is nothing particularly new,” Chambliss said. “Every member of the United States Senate has been advised of this, and to my knowledge we have not had any citizen who has registered a complaint relative to the gathering of this information.” [..]

“I’m a Verizon customer,” Sen. Lindsey Graham (R-S.C.) said during an appearance on Fox News. “I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States.”

How about protecting the Constitution, Senators?

Of course the White House is defending the warrant:

(T)he Obama administration, while declining to comment on the specific order, said the practice was “a critical tool in protecting the nation from terrorist threats to the United States”. [..]

“As we have publicly stated before, all three branches of government are involved in reviewing and authorising intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorises such collection. There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act.”

The administration stressed that the court order obtained by the Guardian relates to call data, and does not allow the government to listen in to anyone’s calls.

Senators Ron Wyden (D-OR), Mark Udall (D-CO) and Bob Corker (R-TN), who have been a vocal opponents of FISA and the Patriot Act, spoke out earlier:

“I have had significant concerns about the intelligence community over-collecting information about Americans’ telephone calls, emails, and other records,” said Sen. Jeff Merkley (D-Ore.), who has tried to change the law, along with Sen. Mark Udall (D-Colo.)

“The administration owes the American public an explanation of what authorities it thinks it has,” said Udall. [..]

“The fact that all of our calls are being gathered in that way — ordinary citizens throughout America — to me is troubling and there may be some explanation, but certainly we all as citizens are owed that, and we’re going to be demanding that,” said Sen. Bob Corker (R-Tenn.), noting that he, too, was a Verizon customer.

Even the chief architect of The Patriot Act, which many consider unconstitutional, Rep. Jim Sensengrenner (R-WI) considers this phone records grab troubling. In a letter to Attorney General Eric Holder, he stated:

As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. The Bureau’s broad application for phone records was made under the so-called business records provision of the Act.  I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.

Discussing The Guardian article by Glenn Greenwald, Amy Goodman on Democracy Now was joined by: William Binney, served in the National Security Agency almost 40 years, including a time as director of the NSA’s World Geopolitical and Military Analysis Reporting Group; Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights; and Thomas Drake, National Security Agency whistleblower who was charged with violating the Espionage Act by the Obama administration.

The domestic NSA-led Surveillance State which Frank Church so stridently warned about has obviously come to fruition.  

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.  

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.