• Tag Archives FISA
  • The FISA Reauthorization Only Boosts Big Brother

     

    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.




  • 58 Human Rights and Civil Liberties Organizations Demand an End to the Backdoor Search Loophole

    EFF and 57 organizations, including American Civil Liberties Union, R Street, and NAACP, spoke out against warrantless searches of American citizens in a joint letter this week demanding reforms of the so-called “backdoor search” loophole that exists for data collected under Section 702.

    The backdoor search loophole allows federal government agencies, including the FBI and CIA, to, without a warrant, search through data collected on American citizens.

    The data is first collected by the intelligence community under a section of law called Section 702 of the FISA Amendments Act of 2008, which provides rules for sweeping up communications of foreign individuals outside the United States. However, the U.S. government also uses 702 to collect the communications of countless American citizens and store them in a database accessible by several agencies.

    EFF and many others believe this type of mass collection alone is unconstitutional. The backdoor search loophole infringes American rights further—allowing agencies to warrantlessly search through 702-collected data by using search terms that describe U.S. persons. These terms could include names, email addresses, and more.

    This practice needs to end. And a proposal before Congress to require warrants on backdoor searches used only in criminal investigations—as recently reported by the New York Times—does not go far enough.

    As EFF, and several other organizations, said in an Oct. 3 letter:

    “Applying a warrant requirement only to searches of Section 702 data involving ‘criminal suspects,’ is not an adequate solution to this problem. Most fundamentally, it ignores the fact that the Fourth Amendment’s warrant requirement is not limited to criminal or non-national security related cases.”

    Further, carving out a warrant requirement solely for criminal investigations ignores the broader umbrella term under which the FBI conducts many searches—that of “foreign intelligence.” Because the FBI conducts investigations with both criminal and foreign intelligence elements, the agency could predictably bypass backdoor warrant requirements by ascribing their searches to foreign affairs matters, rather than criminal.

    Warrantless searches of American communications may especially impact those communities that may be speaking frequently to family outside of the United States of which have historically faced unjust surveillance. As we wrote: “Existing policies make it far too easy for the government to engage in searches that disproportionately target Muslim Americans and immigrants with overseas connections based merely on the assertion of a nebulous ‘foreign intelligence’ purpose.”

    These searches are happening. In 2016, the CIA and NSA reported they conducted 30,000 searches for information about U.S. persons. That number does not include metadata searches by the CIA, a related problem that can also be fixed by Congress before Section 702 sunsets in December.

    Backdoor searches of 702-collected data about U.S. citizens and residents should require a warrant based on probable cause. Congress can protect the rights of countless Americans by closing this loophole.

    Read the full letter.

    Source: 58 Human Rights and Civil Liberties Organizations Demand an End to the Backdoor Search Loophole | Electronic Frontier Foundation



  • NSA Reneges on Promise to Tell Congress How Many Innocent Americans it Spies On

    Lawmakers should know how the laws they pass impact their constituents. That’s especially true when the law would reauthorize a vast Internet and telephone spying program that collects information about millions of law-abiding Americans.

    But that’s exactly what the Intelligence Community wants Congress to do when it considers reauthorizing a sweeping electronic surveillance authority under the expiring Section 702, as enacted by the FISA Amendments Act, before the end of the year.

    Intelligence officials have been promising Congress they would provide lawmakers with an estimate of the number of American communications that are collected under Section 702. That estimate is a critical piece of information for lawmakers to have as they consider whether and how to reauthorize and reform the warrantless Internet surveillance of millions of innocent Americans in the coming months.

    But during a hearing on Section 702 in front of the Senate Intelligence Committee yesterday, Director of National Intelligence Dan Coats, despite previous assurances, said he won’t be providing that estimate out of national security and, ironically, privacy concerns.

    He told lawmakers it is “infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a U.S. person’s communications may be incidentally collected under Section 702.” To do so would require diverting NSA analysts’ attention away from their current work to “conduct additional significant research” to determine whether the communications collected under Section 702 are American. “I would be asking trained NSA analysts to conduct intense identity verification research on potential U.S. persons who are not targets of an investigation,” he said. “From a privacy and civil liberties perspective, I find this unpalatable.”

    From a privacy and civil liberties perspective, we find it unpalatable that the Intelligence Community would ask Congress to reauthorize a controversial surveillance program without first following through on the promise—reiterated by Coats as recently as earlier this year—to provide some much needed information about how the program impacts Americans. To do so supposedly in the name of privacy concerns is even worse.

    It should go without saying: if the Intelligence Community is truly worried about the privacy and civil liberties of ordinary Americans, officials will take the looming Section 702 sunset as an opportunity to give lawmakers the information they need to have an informed and meaningful debate about how government spying programs impact Americans’ privacy.

    Privacy advocate Sen. Ron Wyden criticized DNI Coats for his backtracking, calling his reversal a “very, very damaging position to stake out.” He warned, “We’re going to battle it out in the course of this, because there are a lot of Americans that share our view that security and liberty are not mutually exclusive.”

    And that battle is already happening. With Congress’ debate over Section 702 reauthorization heating up, now is the time to tell your representatives in Congress to let this warrantless spying authority lapse.

    Source: NSA Reneges on Promise to Tell Congress How Many Innocent Americans it Spies On | Electronic Frontier Foundation