Tag: USA Freedom Act

The Senate was briefly in session this week where it took cloture votes on two note worthy bills. One to approve the Keystone XL pipeline and the second called the USA Freedom Act, would vaguely reform the NSA by limiting their ability to spy on Americans. Both bill failed.

Regardless of the denials by the Democratic leadership, the Keystone bill was brought to a vote in a vain attempt to save Louisiana’s Senator Mary Landrieu’s seat. While the Republicans would have bee gleeful of it had passed, the bill failed to reach cloture by one vote. The incoming leadership has vowed to bring it to the floor one more time.

The USA Freedom Act was another deal. Since the the likelihood this bill would never see the light of day in the next session, it was thought there were enough votes for cloture. There weren’t. It was roundly shouted down by Republicans because the Islamic state is coming to kill us.

NSA Reform Bill Dies As Republicans Hype Threats From Islamic State

Dan Froomkin, The Intercept

Supporters of the USA Freedom Act, including privacy groups and technology companies, had considered it an essential first step toward ending the NSA’s overreach. But Senate Minority Leader Mitch McConnell set the tone for the day in the morning, actively encouraging his caucus to block the measure, citing concerns that it would hurt the fight against such groups as the Islamic State. Republicans also took their cues from an op-ed in the Wall Street Journal, in which former CIA and NSA director Michael Hayden and former attorney general Michael Mukasey described the bill as NSA Reform That Only ISIS Could Love.

With Republicans taking control of the Senate in January, a vote during the current lame-duck session was widely considered the bill’s last, best shot.

The USA Freedom Act would have ended the government’s bulk collection of domestic phone records, forcing officials to make specific requests to phone companies. It would also have ended the law-enforcement monopoly on arguments before the secretive surveillance court by creating a role for a special advocate. And it would have required that significant court opinions be made public.

Writing for The Guardian, Trevor Timm thinks that the Republican may have shot themselves in the foot by opposing the bill:

But the Republicans – and NSA supporters everywhere – may have made a mistake that will come back to haunt them. They killed a measure that many reformers were holding their nose while supporting, and six month from now – by the middle of 2015 – they may have several even bigger fights on their hands. [..]

(T)he legislation Republicans just blocked also would have effectively shut down several promising lawsuits against the NSA in federal court and another case where National Security Letters were already ruled unconstitutional.

Now many of those cases, already in the appeals stage, may be decided within the next six months, and if the oral arguments are any indication, the US government may be in trouble. Indeed, the conservative justices may be willing to do more for your privacy than conservative lawmakers, as Judge Richard Leon proved last year when he ruled that the NSA’s phone surveillance program is likely unconstitutional.

But here’s the real reason the the USA Freedom Act’s failure could backfire on its biggest supporters: As I’ve mentioned before, Section 215 of the USA Patriot Act – the law that was re-interpreted in secret to allow for mass phone metadata surveillance in the first place – comes up for renewal next summer. It has to be reauthorized before June, or it will disappear completely.

And even though the Republicans will be in control next year, they won’t be able to pull the same stunts they did on Tuesday. Everyone knows getting “no” votes is a lot easier than getting a “yes”. And this time they’ll need 60 “yes” votes, plus the support of the House of Representatives, where we know already there are likely enough votes to kill an extension of the Patriot Act.

At the New York Times, Charles Savage found a little noticed provision in the Patriot Act that grandfathered on going investigations even if section 215 sunsets:

   The law says that Section 215, along with another section of the Patriot Act, expires on “June 1, 2015, except that former provisions continue in effect with respect to any particular foreign intelligence investigation that began before June 1, 2015, or with respect to any particular offense or potential offense that began or occurred before June 1, 2015.”

   Michael Davidson, who until his retirement in 2011 was the Senate Intelligence Committee’s top staff lawyer, said this meant that as long as there was an older counterterrorism investigation still open, the court could keep issuing Section 215 orders to phone companies indefinitely for that investigation.

   “It was always understood that no investigation should be different the day after the sunset than it was the day before,” Mr. Davidson said, adding: “There are important reasons for Congress to legislate on what, if any, program is now warranted. But considering the actual language of the sunset provision, no one should believe the present program will disappear solely because of the sunset.”

   Mr. Davidson said the widespread assumption by lawmakers and executive branch officials, as well as in news articles in The New York Times and elsewhere, that the program must lapse next summer without new legislation was incorrect.

   The exception is obscure because it was recorded as note accompanying Section 215; while still law, it does not receive its own listing in the United States Code. It was created by the original Patriot Act and was explicitly restated in a 2006 reauthorization bill, and then quietly carried forward in 2010 and in 2011.

While over at The Intercept, journalist and author, Glenn Greenwald found watching the Senate debate was “like watching a repeat of some hideously shallow TV show”. As he noted, congress is irrelevant on mass surveillance and points out what really matters:

The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court-the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy. [..]

In pretty much every interview I’ve done over the last year, I’ve been asked why there haven’t been significant changes from all the disclosures. I vehemently disagree with the premise of the question, which equates “U.S. legislative changes” with “meaningful changes.” But it has been clear from the start that U.S. legislation is not going to impose meaningful limitations on the NSA’s powers of mass surveillance, at least not fundamentally. Those limitations are going to come from-are now coming from -very different places:

1) Individuals refusing to use internet services that compromise their privacy. The FBI and other U.S. government agencies, as well as the U.K. Government, are apoplectic over new products from Google and Apple that are embedded with strong encryption, precisely because they know that such protections, while far from perfect, are serious impediments to their power of mass surveillance. To make this observation does not mean, as some deeply confused people try to suggest, that one believes that Silicon Valley companies care in the slightest about people’s privacy rights and civil liberties. [..]

2) Other countries taking action against U.S. hegemony over the internet. Most people who claim nothing has changed from the Snowden disclosures are viewing the world jingoistically, with the U.S. the only venue that matters. But the real action has long been in other countries, acting individually and jointly to prevent U.S. domination of the internet. [..]

3) U.S. court proceedings. A U.S. federal judge already ruled that the NSA’s domestic bulk collection program likely violates the 4th Amendment, and in doing so, obliterated many of the government’s underlying justifications. Multiple cases are now on appeal, almost certainly headed to the Supreme Court. None of this was possible in the absence of Snowden disclosures. [..]

4) Greater individual demand for, and use of, encryption. In the immediate aftermath of the first Snowden reports, I was contacted by countless leading national security reporters in the U.S., who work with the largest media outlets, seeking an interview with Snowden. But there was a critical problem: despite working every day on highly sensitive matters, none of them knew anything about basic encryption methods, nor did their IT departments. Just a few short months later, well over 50 percent of the journalists who emailed me did so under the protection of PGP encryption. Today, if any journalist emails me without encryption, they do so apologetically and with embarrassment. [..]

The changes from the Snowden disclosures are found far from the Kabuki theater of the D.C. political class, and they are unquestionably significant. That does not mean the battle is inevitably won: The U.S. remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and the forces of reform are formidable-not because of anything the U.S. congress is doing, but despite it.

The USA Freedom Act would have made little difference to the unlawful NSA. What matters now is what the courts and we do to preserve our rights.

In a joint statement, the ACLU and Human Rights Watch released a 120 page report documenting how mass surveillance by the US is undermining constitutional rights to freedom of the press and legal council

The 120-page report, “With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy,” is based on extensive interviews with dozens of journalists, lawyers, and senior US government officials. It documents how national security journalists and lawyers are adopting elaborate steps or otherwise modifying their practices to keep communications, sources, and other confidential information secure in light of revelations of unprecedented US government surveillance of electronic communications and transactions. The report finds that government surveillance and secrecy are undermining press freedom, the public’s right to information, and the right to counsel, all human rights essential to a healthy democracy.

Amy Goodman and Aaron Mate sat down with Alex Sinha, Aryeh Neier fellow at Human Rights Watch and the American Civil Liberties Union, and Jeremy Scahill, staff reporter with The Intercept to discuss the threat to Americans’ liberties.

In a new report, Human Rights Watch and the American Civil Liberties Union warn that “large-scale surveillance is seriously hampering U.S.-based journalists and lawyers in their work.” The report is based on interviews with dozens of reporters and lawyers. They describe a media climate where journalists take cumbersome security steps that slows down their reporting. Sources are afraid of talking, as aggressive prosecutions scare government officials into staying silent, even about issues that are unclassified. For lawyers, the threat of surveillance is stoking fears they will be unable to protect a client’s right to privacy. Some defendants are afraid of speaking openly to their own counsel, undermining a lawyer’s ability provide the best possible defense.

Journalism under fire: America’s freedom of the press is in danger

By Heather Digby Parton, Salon

If there’s one thing that civil libertarians across the American political spectrum tend to agree upon, it’s that the Bill of Rights is a guiding document. It doesn’t say everything but it says a lot. The various political factions do sometimes differ in their emphasis and interpretation, with the right’s civil libertarians often tending to focus more closely on the 1st Amendment’s establishment clause and the 2nd Amendment while the left-leaning civil libertarians take a harder line on freedom of speech and the 4th amendment. This is of course a sweeping generalization which can be disproved in dozens of individual cases, but for the sake of argument, it can probably be stipulated that those who concern themselves with the civil liberties enshrined in the Constitution all agree on the Bill of Rights’ importance to our constitutional order.  And they tend to agree across the board, with equal fervor, on the necessity of a free press to a functioning democracy. [..]

Considering the reaction of many people in the government toward reporters involved in the NSA revelation, it’s clear they have reason to be paranoid. There are government officials awho consider them to be spies and have said they should be punished as such. Even fellow journalists have brought up the question of “aiding and abetting” as if it’s a legitimate line of inquiry.

The atmosphere of mistrust is also rampant within the government, as with the administration having cracked down on contacts between the intelligence community and issuing threats of legal action even before the Snowden revelations. The institutionalized, government-wide initiative called the Insider Threat Program could have any federal employee looking over his  shoulder and worrying that his innocent behavior might be construed as suspicious. [..]

And it’s not just national security agencies that are subject to this program. They are in effect in departments as disparate as the Department of Education and the Peace Corps.

Top Journalists and Lawyers: NSA Surveillance Threatens Press Freedom and Right to Counsel

By Dan Froomkin, The Intercept

Not even the strongest versions of NSA reform being considered in Congress come anywhere close to addressing the chilling effects on basic freedoms that the new survey describes.

“If the US fails to address these concerns promptly and effectively,” report author  G. Alex Sinha writes, “it could do serious, long-term damage to the fabric of democracy in the country.”

Even before the Snowden revelations, reporters trying to cover important defense, intelligence and counter-terrorism issues were reeling from the effects of unprecedented secrecy and attacks on whistleblowers.

But newfound awareness of the numerous ways the government can follow electronic trails –  previously considered the stuff of paranoid fantasy – has led sources to grow considerably more fearful.

Senator Patrick Leahy (D-NH) introduced the version of the USA Freedom Act on Tuesday.

Leahy’s bill, like the House’s, would still provide the NSA with access to enormous amounts of American phone data. Though it would require a judge to issue an order to telecos for “call detail records” based on a “reasonable, articulable suspicion” of association with terrorism or a foreign power, the NSA will be able to use that single order to obtain the “call detail records” of a suspicious entity, as well as those of entities in “direct connection” with it and entities in connection with those.

While that would permit the NSA to yield thousands of records off of a single court order, on a daily basis for six months, the NSA and the bill’s architects contend that it bans “bulk collection.”

Leahy’s bill would go further than the House version in narrowing the critical definition of “specific selection term,” a foundational aspect of the bill defining what the government can collect. The House definition is a “term specifically identifying a person, entity, account, address, or device,” which privacy groups have lambasted as unreasonably broad.

Seeking to plug that loophole, Leahy would prevent the NSA or the FBI from accessing a service provider’s entire clientele or a wholesale “city, state, zip code, or area code.”

Although the Leahy bill has the support of several civil libertarian groups and major tech firms like Facebook and Google, it does not revive some privacy proposals that those organizations considered crucial but the intelligence agencies and their advocates in Congress stripped from the House measure.

There are still some really big loopholes, as noted by emptywheel’s Marcy Wheeler:

Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

   (iii) provide that the Government may require the prompt production of call detail records-

   (I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

   (II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)? [..]

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

That’s just for starters. She is also concerned about the vague language will still be used to allow bulk collection. She doesn’t think it’s strong enough

The question is whether this “agency protocol” – what Chief Justice John Roberts said was not enough to protect Americans’ privacy – is sufficient to protect Americans’ privacy.

I don’t think it is.

First, it doesn’t specify how long the NSA and FBI and CIA can keep and sort through these corporate records (or what methods it can use to do so, which may themselves be very invasive).

It also permits the retention of data that gets pretty attenuated from actual targets of investigation: agents of foreign powers that might have information on subjects of investigation and people “in contact with or known to” suspected agents associated with a subject of an investigation.

Known to?!?! Hell, Barack Obama is known to all those people. Is it okay to keep his data under these procedures?

Also remember that the government has secretly redefined “threat of death or serious bodily harm” to include “threats to property,” which could be Intellectual Property.

So CIA could (at least under this law – again, we have no idea what the actual FISC orders this is based off of) keep 5 years of Western Union money transfer data until it has contact chained 3 degrees out from the subject of an investigation or any new subjects of investigation it has identified in the interim.

In other words, probably no different and potentially more lenient than what it does now.

And one more thing from Marcy: Leahy’s version still will allow the FBI uncounted use of backdoor searches:

I strongly believe this bill may expand the universe of US persons who will be thrown into the corporate store indefinitely, to be subjected to the full brunt of NSA’s analytical might.

But that’s not the part of the bill that disturbs me the most. It’s this language:

   ‘(3) FEDERAL BUREAU OF INVESTIGATION.-

   Subparagraphs (B)(iv), (B)(v), (D)(iii), (E)(iii), and (E)(iv) of paragraph (1) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

The language refers, in part,  to requirements that the government report to Congress [..]

These are back door searches on US person identifiers of Section 702 collected data – both content (iv) and metadata (v).

In other words, after having required the government to report how many back door searches of US person data it conducts, the bill then exempts the FBI.

The FBI – the one agency whose use of such data can actually result in a prosecution of the US person in question.

We already know the government has not provided all defendants caught using 702 data notice. And yet, having recognized the need to start counting how many Americans get caught in back door searches, Patrick Leahy has decided to exempt the agency that uses back door searches the most.

And if they’re not giving defendants notice (and they’re not), then this is an illegal use of Section 702.

While the Senate version may be a good enough reason for some civil libertarians, privacy groups and technology firms to back, it still falls far short of what is needed to protect Americans’ constitutional rights and privacy.

President Barack Obama has said that he wanted to reform how the NSA collects and stores metadata. What he says and what he does, again, are two different things.

The “Consult with Congress” Stage of USA Freedumb

By Marcy Wheeler, emptywheel

Remember how, in the days after President Obama announced his principles for reforming the dragnet, his Senior Administration Official pretended that any efforts to make the scope of the program worse would come from Congress? [..]

Well, it looks like the Administration isn’t so passive after all. They’re working with House leadership to gut the bill.

   TROUBLE FOR USA FREEDOM? – House leadership and Obama administration officials met with committee members Sunday to negotiate changes to key NSA reform legislation, parting late in the evening without reaching a final resolution, said a congressional staffer close to the process. Still, it seems clear that the USA FREEDOM Act, approved by the House Judiciary and Intelligence committees little more than a week ago, will not reach the House floor intact. Some passages have been watered down already, the staffer acknowledged, declining to go into specifics. The bill is set for “possible consideration” this week, according to the schedule circulated by House Majority Leader Eric Cantor’s office.

   Word of the talks caused some of the bill’s most ardent privacy and civil liberties backers to cry foul and say they could withdraw support. Areas of concern to watchdogs include possible removal of transparency language allowing companies to tell their customers about the broad numbers of lawful intercept requests they receive; and a debate on whether the search terms used by the NSA to search communications records should be narrowly defined in statute.

   “The version we fear could now be negotiated in secret and introduced on the House floor may not move us forward on NSA reform,” said human rights organization Access. “I am gravely disappointed if the House leadership and the administration chose to disrupt the hard-fought compromise that so many of us were pleased to support just two weeks ago,” said Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute.

And while it’s not clear these secret changes would broaden the scope outside of counterterrorism (though I think that’s possible already), it does seem clear the Administration is pushing for these changes because the already weak bill is too strong for them.

Congress is no better.

Advocates fear NSA bill is being gutted

By Kate Tummarello, The Hill

To win the support of NSA defenders, lawmakers abandoned some reform provisions in Sensenbrenner’s original bill. One of the major changes was dropping the appointment of a constitutional advocate to the Foreign Intelligence Surveillance Court, which approves the NSA’s spying requests, and substituting it for a panel of experts.

The bill was also stripped of language that would have allowed tech companies to publish more specific information about the number and types of government requests for user data they receive.

During Judiciary consideration, an amendment to allow less specific reporting was added back into the bill, but some worry that provision is in danger now because the administration thinks it’s already reached a deal that allows tech companies to publish more information about the NSA requests.

While pro-reform advocacy groups and members hailed the House bill as a positive first step, many lamented the revisions and said the legislation will be in trouble on the floor if it undergoes further changes.

A Deep Dive into the House’s Version of Narrow NSA Reform: The New USA Freedom Act

By Mark Jaycox, Electronic Freedom Foundation

Here’s how the House version of the USA Freedom Act compares to the Senate’s version, what the new House version of the USA Freedom Act does, and what it sorely lacks.

The Senate’s Version of USA Freedom Act

As we mentioned when the original USA Freedom Act was first introduced, it proposed changes to several NSA activities and limited the bulk collection of all Americans’ calling records. It would fix a key problem with Section 702 (.pdf) of the Foreign Intelligence Surveillance Amendments Act (FISAA), bring more transparency to the Foreign Intelligence Surveillance Act Court (FISA court), and introduce a special advocate to champion civil liberties in the FISA court.

The House’s New Version of the USA Freedom Act:

The new USA Freedom Act concentrates on prohibiting the collection of all Americans’ calling records using Section 215 of the Patriot Act. Other sections of the bill would allow the FISA Court to assign amici, or non-parties who can brief issues before the court; create new government reports about the spying powers; and create new company reports detailing how many accounts and customers are affected by FISA Court orders.

First and foremost, the bill introduces a different conceptual approach to prohibiting mass spying under Section 215. Unlike the Senate version, which tries to stop the mass collection of calling records by mandating that the records sought “pertain to” an agent of a foreign power or their activities-an approach that we’ve worried about because “pertains to” and “relevant” are so similar-the House version mandates that a “specific selection term” (currently defined as uniquely describing a person, entity, or account) be the “basis for the production” of the records. The overall language may be stronger than in the old USA Freedom Act, but “specific selection term” must be further defined as “entity” could be construed expansively. After the order is filed, the government can obtain up to “two hops“-which may be too expansive for many investigations-from the selection term.

The bill also tries to tighten the “minimization procedures” that apply to government collection of records using Section 215 and other spying authorities like national security letters and the FISA Pen Register/Trap and Trace (PR/TT) provision. But the procedures only touch the FBI, not other agencies-like the NSA-that may be obtaining records using Section 215. In addition, the House version uses language we’ve seen in Section 702’s minimization procedures. If you remember, those procedures are horrendous. They allow for the overcollection, overretention, and oversharing of Americans’ communications “mistakenly” collected. The House must draft stronger minimization language to completely ensure improper information about untargeted users is not collected. For instance, simply inserting the word “acquisition” or “collection” would help.

End the NSA’s Mass Spying

Tell Congress: Support the USA FREEDOM Act. Stop the FISA Improvements Act & Other Fake Reforms.

There’s a powerful reform proposal moving through Congress. H.R. 3361, the House’s version of the USA FREEDOM Act, would limit bulk collection of phone records and add transparency to the egregious NSA spying.

If it passes, the USA FREEDOM Act will be the most meaningful reform of government surveillance in decades. While the USA FREEDOM Act doesn’t address every issue with NSA surveillance, it’s a powerful first step.

But certain members of Congress don’t want reform. Representatives Mike Rogers and Dutch Ruppersberger have introduced a bill that attempts to make NSA spying worse. And Senator Dianne Feinstein is promoting the FISA Improvements Act, a bill posing as reform that attempts to legalize the worst aspects of NSA surveillance.

We can’t let NSA apologists preserve the status quo. Demand real reform.  Stop mass spying.