• Tag Archives FISA

  • The FBI is Playing Politics with Your Privacy

    Posted on by Azrael Comment

    A bombshell report from WIRED reveals that two days after the U.S. Congress renewed and expanded the mass-surveillance authority Section 702 of the Foreign Intelligence Surveillance Act, the deputy director of the Federal Bureau of Investigation (FBI), Paul Abbate, sent an email imploring agents to “use” Section 702 to search the communications of Americans collected under this authority “to demonstrate why tools like this are essential” to the FBI’s mission.

    In other words, an agency that has repeatedly abused this exact authority—with 3.4 million warrantless searches of Americans’ communications in 2021 alone, thinks that the answer to its misuse of mass surveillance of Americans is to do more of it, not less. And it signals that the FBI believes it should do more surveillance–not because of any pressing national security threat—but because the FBI has an image problem.

    The American people should feel a fiery volcano of white hot rage over this revelation. During the recent fight over Section 702’s reauthorization, we all had to listen to the FBI and the rest of the Intelligence Community downplay their huge number of Section 702 abuses (but, never fear, they were fixed by drop-down menus!). The government also trotted out every monster of the week in incorrect arguments seeking to undermine the bipartisan push for crucial reforms. Ultimately, after fighting to a draw in the House, Congress bent to the government’s will: it not only failed to reform Section 702, but gave the government authority to use Section 702 in more cases.

    Now, immediately after extracting this expanded power and fighting off sensible reforms, the FBI’s leadership is urging the agency to “continue to look for ways” to make more use of this controversial authority to surveil Americans, albeit with the fig leaf that it must be “legal.” And not because of an identifiable, pressing threat to national security, but to “demonstrate” the importance of domestic law enforcement accessing the pool of data collected via mass surveillance. This is an insult to everyone who cares about accountability, civil liberties, and our ability to have a private conversation online. It also raises the question of whether the FBI is interested in keeping us safe or in merely justifying its own increased powers.

    Section 702 allows the government to conduct surveillance inside the United States by vacuuming up digital communications so long as the surveillance is directed at foreigners currently located outside the United States. Section 702 prohibits the government from intentionally targeting Americans. But, because we live in a globalized world where Americans constantly communicate with people (and services) outside the United States, the government routinely acquires millions of innocent Americans’ communications “incidentally” under Section 702 surveillance. Not only does the government acquire these communications without a probable cause warrant, so long as the government can make out some connection to FISA’s very broad definition of “foreign intelligence,” the government can then conduct warrantless “backdoor searches” of individual Americans’ incidentally collected communications. 702 creates an end run around the Constitution for the FBI and, with the Abbate memo, they are being urged to use it as much as they can.

    The recent reauthorization of Section 702 also expanded this mass surveillance authority still further, expanding in turn the FBI’s ability to exploit it. To start, it substantially increased the scope of entities who the government could require to turn over Americans’ data in mass under Section 702. This provision is written so broadly that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider, which could include landlords, maintenance people, and many others who routinely have access to your communications.

    The reauthorization of Section 702 also expanded FISA’s already very broad definition of “foreign intelligence” to include counternarcotics: an unacceptable expansion of a national security authority to ordinary crime. Further, it allows the government to use Section 702 powers to vet hopeful immigrants and asylum seekers—a particularly dangerous authority which opens up this or future administrations to deny entry to individuals based on their private communications about politics, religion, sexuality, or gender identity.

    Americans who care about privacy in the United States are essentially fighting a political battle in which the other side gets to make up the rules, the terrain…and even rewrite the laws of gravity if they want to. Politicians can tell us they want to keep people in the U.S. safe without doing anything to prevent that power from being abused, even if they know it will be. It’s about optics, politics, and security theater; not realistic and balanced claims of safety and privacy. The Abbate memo signals that the FBI is going to work hard to create better optics for itself so that it can continue spying in the future.

    Source: The FBI is Playing Politics with Your Privacy | Electronic Frontier Foundation


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  • U.S. Senate and Biden Administration Shamefully Renew and Expand FISA Section 702, Ushering in a Two Year Expansion of Unconstitutional Mass Surveillance

    Posted on by Azrael Comment

    One week after it was passed by the U.S. House of Representatives, the Senate has passed what Senator Ron Wyden has called, “one of the most dramatic and terrifying expansions of government surveillance authority in history.” President Biden then rushed to sign it into law.  

    The perhaps ironically named “Reforming Intelligence and Security America Act (RISAA)” does everything BUT reform Section 702 of the Foreign Intelligence Surveillance Act (FISA). RISAA not only reauthorizes this mass surveillance program, it greatly expands the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance. The bill’s only significant “compromise” is a limited, two-year extension of this mass surveillance. But overall, RISAA is a travesty for Americans who deserve basic constitutional rights and privacy whether they are communicating with people and services inside or outside of the US.

    Section 702 allows the government to conduct surveillance of foreigners abroad from inside the United States. It operates, in part, through the cooperation of large telecommunications service providers: massive amounts of traffic on the Internet backbone are accessed and those communications on the government’s secret list are copied. And that’s just one part of the massive, expensive program. 

    While Section 702 prohibits the NSA and FBI from intentionally targeting Americans with this mass surveillance, these agencies routinely acquire a huge amount of innocent Americans’ communications “incidentally.” The government can then conduct backdoor, warrantless searches of these “incidentally collected” communications.

    The government cannot even follow the very lenient rules about what it does with the massive amount of information it gathers under Section 702, repeatedly abusing this authority by searching its databases for Americans’ communications. In 2021 alone, the FBI reported conducting up to 3.4 million warrantless searches of Section 702 data using Americans’ identifiers. Given this history of abuse, it is difficult to understand how Congress could decide to expand the government’s power under Section 702 rather than rein it in.

    One of RISAA’s most egregious expansions is its large but ill-defined increase of the range of entities that have to turn over information to the NSA and FBI. This provision allegedly “responds” to a 2023 decision by the FISC Court of Review, which rejected the government’s argument that an unknown company was subject to Section 702 for some circumstances. While the New York Times reports that the unknown company from this FISC opinion was a data center, this new provision is written so expansively that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider. This could potentially include landlords, maintenance people, and many others who routinely have access to your communications on the interconnected internet.

    This is to say nothing of RISAA’s other substantial expansions. RISAA changes FISA’s definition of “foreign intelligence” to include “counternarcotics”: this will allow the government to use FISA to collect information relating to not only the “international production, distribution, or financing of illicit synthetic drugs, opioids, cocaine, or other drugs driving overdose deaths,” but also to any of their precursors. While surveillance under FISA has (contrary to what most Americans believe) never been limited exclusively to terrorism and counterespionage, RISAA’s expansion of FISA to ordinary crime is unacceptable.

    RISAA also allows the government to use Section 702 to vet immigrants and those seeking asylum. According to a FISC opinion released in 2023, the FISC repeatedly denied government attempts to obtain some version of this authority, before finally approving it for the first time in 2023. By formally lowering Section 702’s protections for immigrants and asylum seekers, RISAA exacerbates the risk that government officials could discriminate against members of these populations on the basis of their sexuality, gender identity, religion, or political beliefs.

    Faced with massive pushback from EFF and other civil liberties advocates, some members of Congress, like Senator Ron Wyden, raised the alarm. We were able to squeeze out a couple of small concessions. One was a shorter reauthorization period for Section 702, meaning that the law will be up for review in just two more years. Also, in a letter to Congress, the Department of Justice claimed it would only interpret the new provision to apply to the type of unidentified businesses at issue in the 2023 FISC opinion. But a pinky promise from the current Department of Justice is not enforceable and easily disregarded by a future administration. There is some possible hope here, because Senator Mark Warner promised to return to the provision in a later defense authorization bill, but this whole debacle just demonstrates how Congress gives the NSA and FBI nearly free rein when it comes to protecting Americans – any limitation that actually protects us (and here the FISA Court actually did some protecting) is just swept away.

    RISAA’s passage is a shocking reversal—EFF and our allies had worked hard to put together a coalition aimed at enacting a warrant requirement for Americans and some other critical reforms, but the NSA, FBI and their apologists just rolled Congress with scary-sounding (and incorrect) stories that a lapse in the spying was imminent. It was a clear dereliction of Congress’s duty to oversee the intelligence community in order to protect all of the rest of us from its long history of abuse.

    After over 20 years of doing it, we know that rolling back any surveillance authority, especially one as deeply entrenched as Section 702, is an uphill fight. But we aren’t going anywhere. We had more Congressional support this time than we’ve had in the past, and we’ll be working to build that over the next two years.

    Too many members of Congress (and the Administrations of both parties) don’t see any downside to violating your privacy and your constitutional rights in the name of national security. That needs to change.


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  • The FISA Reauthorization Only Boosts Big Brother

    Posted on by Azrael Comment

     

    In a bipartisan manner, Congress recently passed the FISA Reauthorization Act of 2017. On January 19th, President Trump signed this bill into law. The new law extends the controversial Section 702 program that allows the NSA to conduct warrantless surveillance of non-US citizens or residents.

    This program clearly serves the interests of our intelligence agencies. However, the private information of millions of Americans is also collected in this program. And the private information of anyone in the US who communicates with someone outside of the country could potentially be stored in this massive database.

    Significant Privacy Issues

    How expansive is this program? The Washington Post reviewed a sample of communications from the Edward Snowden leaks and found that 9 out of 10 people in the database were not surveillance targets. Nearly half of these people were American citizens or residents, and their private information was swept up in this net.

    This isn’t just a matter of preserving privacy. Once information enters this program, all conventional constitutional law goes by the wayside. The FBI has access to this program to do “backdoor searches” for any crime without a warrant. That information can be passed along to whichever law enforcement agencies the FBI deems necessary. Furthermore, this isn’t a minor program that applies to a few people. There were an estimated 106,469 targets in 2016.

    Even former CIA and NSA director Michael Hayden has admitted that the FBI’s access to this information without a warrant is a “no-fooling legitimate issue.” Hence, a small but bipartisan group within Congress supported the USA RIGHTS Act that would have maintained national security intelligence without sacrificing Americans’ basic freedoms. The bill would have required a warrant for FBI access to US citizens’ communications.

    A group of five Senators, notably Ron Wyden (D-OR) and Rand Paul (R-KY), filibustered the FISA Reauthorization Act of 2017 in hopes of redirecting support for the USA Rights Act. Unfortunately, their effort was nullified when Sen. Claire McCaskill (D-MO) cast the deciding vote that ended the filibuster. She was one of 18 Democrats who voted in kind.

    Bear in mind, the Democrats have consistently criticized President Trump’s authoritarian ways, yet their support for this bill contradicted all of their pleas for responsible leadership. Moreover, this filibuster was nullified on January 16th, the day after the birthday of Martin Luther King, one of the foremost victims of federal government persecution.

    No Reform, Just Expansion

    Nonetheless, Congress passed this bill under the guise that reforms in favor of civil liberties had been made. The new law requires the FBI to obtain a warrant to search the 702 database for information about American citizens. However, there’s a catch. The FBI only needs to get a warrant if that person is already under criminal investigation. Consequently, this “reform” actually incentivizes the FBI to conduct more arbitrary searches and provides criminals with better protections.

    Some legal experts, such as Robyn Greene of the Open Technology Institute at New America, contest that the new law has also essentially reauthorized and expanded a practice that the NSA agreed to discontinue. This involves the collection of “about” data in which your personal communications can be swept up by the NSA for mentioning a person who is a target of surveillance. This decision poses a particular danger to the media or political activists.

    Furthermore, there were no reforms of a little-known system called “parallel construction.” As mentioned earlier, the information in the NSA’s database can be used by federal law enforcement agencies, particularly the DEA, for domestic operations. However, the government doesn’t have to disclose in a court of law that the investigation was initiated by information from the NSA. Considering that prosecutors can omit the origin of the investigation, a former DEA agent, Finn Selander, accurately criticized this practice by analogizing it as “money laundering” for evidence.

    There are many disturbing revelations about the FISA Reauthorization Act. Suffice it to say, Congress provided a tremendous amount of latitude to an agency that has shown no determination for reform in the wake of high-profile scandals. As a matter of fact, on the same day that President Trump signed the FISA Reauthorization Act, Politico reported that the NSA destroyed info related to Bush’s warrantless wiretaps. That “mistake” was quite convenient because that information was to be used as evidence in pending lawsuits against the government.

    A pair of Trump tweets illustrated some of the hypocrisy on this issue. At 4:33 in the morning on January 11th, Trump’s tweet asserted that the FISA Act “may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump campaign by the previous administration and others?” Nearly two hours later, he flipped his stance tweeting, “With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”

    As easy as it is to poke fun at Trump on this issue, his views related to authoritarian government surveillance aren’t much different from most Americans. Polls show that public opinion on NSA spying shifts back and forth depending upon who is in the White House. In other words, liberal or conservative voters generally aren’t opposed to mass surveillance as long as their party is in power.

    Both sides can point to a list, which is far too lengthy for this space, of federal government abuses for political purposes. However, the two major parties have continued raising the stakes by providing more power to the federal government with few meaningful reforms.

    No Protection of Whistleblowers

    The FISA Reauthorization Act received strong support from the Republicans despite the backdrop of the “Nunes memo” alleging misconduct towards President Trump. Over the last year, conservatives have heard from NSA whistleblower William Binney who is now a frequent guest on Fox News. Binney was persona non grata during the Bush administration, but now his revelations indirectly help build a narrative that the Deep State is suppressing Trump.  

    Binney and his fellow NSA whistleblowers felt the wrath of the FBI for merely speaking truth to power. Ironically, the disturbing information from intelligence whistleblowers led to the creation of the 702 program, which was approved by Congress in 2008, in part, to rein in the warrantless wiretaps by the Bush administration.

    In an environment where there is no real government accountability, it elevates the importance of whistleblower protection. Nonetheless, numerous government whistleblowers have faced retaliation for merely performing their civic duty. The latest victim being Dan Meyer, the director of the Intelligence Community Whistleblowing and Source Protection program.

    Meyer was escorted out of the building in December of last year, and his office was marked with police tape. He has been placed on leave and faces termination in an act of clear retribution. For several years, Meyers has worked as an advocate for whistleblowers in the Defense Department.

    This is a familiar situation for Meyer personally as he has acted as a whistleblower in the past. He once received a settlement from the government due to the retribution he faced after disclosing that Leon Panetta allegedly leaked classified material to the directors of Zero Dark Thirty. In his current situation, Meyer is reportedly facing retaliation for pressuring the inspector generals from the 17 intelligence agencies to implement better whistleblower protections.

    We face a system that punishes the reformers and rewards the most corrupt. For years, an AT&T technician, Mark Klein, warned of the secret backroom that connected to the NSA. His efforts were suppressed from the public eye until leaks from NSA whistleblowers were printed by the press. Nonetheless, AT&T has been rewarded handsomely with a multi-billion contract that was reported last week.

    Unfortunately, public outrage against government abuses is generally selective and partisan. All in all, both major political parties use critical rhetoric that warns of the power of Big Brother, yet neither entity does much to prevent the growth of the surveillance state.


    Brian Saady

    Brian Saady is a freelance writer who focuses on a number of human rights and criminal justices issues. He’s also the author of four books, including a three-book series, Rackets, which is about the legalization of drugs and gambling, and the decriminalization of prostitution.

    This article was originally published on FEE.org. Read the original article.




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