• Tag Archives NSA
  • Trump’s FBI Pick Has a Troubling History on Digital Liberties

    President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process next week, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.

    Defense of the USA PATRIOT Act

    During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.

    When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had never been used. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its report on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was already collecting much of that data—without statutory authorization.

    Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “sneak and peek” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found inconsistent with the Fourth Amendment; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.

    Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”

    Outstanding Questions about STELLARWIND

    President Bush’s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was reputedly one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND’s legality—though Wray himself wasn’t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller’s willingness to challenge President Bush over those surveillance programs, telling WIRED, “I think that the great thing about [people with] strong moral compasses is that they don’t have to hand-wring. When they’re uncomfortable, they know what they have to do.”

    But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a 2009 inspector general report, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government—in working to preserve the spying program’s secrecy—was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department’s Inspector General later found, “[T]he Department made little effort to understand and comply with its discovery obligations with Stellar Wind-derived information for the first several years of the program.” What legal analysis had been conducted was, the IG would later write, “factually flawed and inadequate.”

    Wray and another attorney in the Justice Department’s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it’s not clear Wray took any action to remedy the problem. While the memo recommended further research, there seems to have been no follow up. Four years after Wray left the Justice Department, its Inspector General would write that efforts to comply with the Constitution and other legal responsibilities “are not complete and do not fully ensure that the government has met its discovery obligations.”

    Before he’s given the top job at the country’s law enforcement agency, Wray should have to square his praise for officials willing to challenge unconstitutional surveillance with his apparent inaction on a constitutional question about the rights of defendants swept up in spying programs.

    Aggressive Copyright Prosecutions

    As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department’s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray named a guilty plea from a defendant who shared a pre-release copy of “The Hulk” in a chat room as one of the most significant intellectual property prosecutions of the year. That emphasis seems disproportionate, to say the least. As Senator Leahy put it in the same Judiciary Committee hearing, “That movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.” Still, the impact on the defendant was very real—including six months’ home confinement.

    In a climate in which copyright law is increasingly abused to chill and deter speech online, Wray’s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.

    An Obligation to Explain—and Reconsider

    If confirmed, Christopher Wray will lead an agency with vast power to intrude on fundamental digital liberties. During his last tour in government service, he expressed views that should concern everyday Internet users. During this upcoming confirmation process, we expect lawmakers to review Wray’s record, and we hope he will disavow some of his more dangerous views on the government surveillance activities that we know to violate our core civil liberties.

  • Congress Needs to End Warrantless Spying, Not Make It Permanent

    Lawmakers are getting serious about renewing the U.S. government’s Internet spying powers, so we need to get serious about stopping their bad proposals.

    First out of the gate is a bill from Sen. Tom Cotton, an ardent defender of government surveillance. His bill would not just reauthorize, but make permanent the expiring measure that the government says justifies the warrantless surveillance of innocent Americans’ online communications—Section 702, as enacted by the FISA Amendments Act. His bill (S. 1297) is supported by several Republicans in the Senate, including Senate Intelligence Chairman Richard Burr and Sens. John Cornyn, John McCain, and Lindsey Graham.

    Section 702 surveillance violates the privacy rights of millions of people. This warrantless spying should not be allowed to continue, let alone be made permanent as is.

    As originally enacted, Section 702 expires every few years, giving lawmakers the chance to reexamine the broad spying powers that impact their constituents. This is especially crucial as technology evolves and as more information about how the surveillance authority is actually used comes to light, whether through government publication or in the press.

    If Congress were to approve Cotton’s bill, lawmakers would not only be ignoring their constituents’ privacy concerns, but they would also be ceding their obligation to regularly review, debate, and update the law. That is not acceptable.

    Luckily, there’s already opposition to the proposal to make Section 702 permanent. During recent hearings at the Senate Intelligence and Judiciary Committees on Section 702 surveillance, Sen. Dianne Feinstein—who has historically been sympathetic to the intelligence community—said she could not support a bill that makes Section 702 permanent.

    Now we need other members of Congress to make the same stand. We cannot accept lawmakers ignoring our privacy concerns and their responsibility to review surveillance law, and our lawmakers need to hear that.

    Sign our petition today and tell Congress to oppose S. 1297 and the permanent reauthorization of Section 702 spying.



    Source: Congress Needs to End Warrantless Spying, Not Make It Permanent | Electronic Frontier Foundation

  • As a Provider Fought a Secret Surveillance Order, Court Denied It Access to Relevant Law

    The U.S. government’s foreign surveillance law is so secretive that not even a service provider challenging an order issued by a secret court got to access it.

    That Kafkaesque episode—denying a party access to the law being used against it—was made public this week in a FISC opinion EFF obtained as part of a FOIA lawsuit we filed in 2016.

    The opinion [.pdf] shows that in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider’s request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider’s cooperation.

    The decision was related to the provider’s ultimately unsuccessful challenge to a surveillance directive it received under Section 702, the warrantless surveillance authority that is set to expire this year.

    The decision is startling because it demonstrates how secrecy jeopardizes one of the most fundamental principles of our justice system: everyone gets to know what the law is. Apparently, that principle doesn’t extend to the FISC.

    The provider’s request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time—one from 2014 and another from 2008—the provider asked the court for access to those rulings.

    The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

    The court disagreed in several respects. It found that the court’s rules and Section 702 prohibited the documents release. It also rejected the provider’s claim that the Constitution’s Due Process Clause entitled it to the documents.

    The opinion goes on: “Beyond what is compelled by the Due Process Clause, the Court is satisfied that withholding the Requested Opinions does not violate common-sense fairness.” This was because the Court believed that the DOJ had accurately represented the rulings in its legal briefs and did not mislead the provider about what those rulings said.

    The court also said that even if the opinions were released, they “would be of little, if any assistance” to the merits of the provider’s arguments.

    The court’s opinion notwithstanding, there is nothing fair about withholding important legal cases—which likely interpreted or created law—from one side in a legal dispute.

    The court’s decision is akin to allowing one party to read and cite to a Supreme Court case while prohibiting the other side from doing the same. It fundamentally disadvantages one side in a legal fight, on top of denying it access to the case to ensure that the party in the know is accurately representing the ruling.

    In the case of the provider, the deck was always stacked against its ability to challenge the 702 order. The FISC traditionally only hears from one party—the Executive Branch—and is usually sympathetic to claims of national security.

    Although recent changes to the FISC as a result of USA Freedom Act have moved in the right direction, including the ability for outside parties to argue before the court, the DOJ still has many advantages.

    In the case of the provider, the trump card was that the DOJ’s lawyers got to read and rely on cases that the provider never got to see.

    To be sure, the unjust result is not entirely the fault of the FISC. As the ruling points out, Congress has provided little to no recourse for a party challenging secret surveillance orders to be able to obtain documents and FISC rulings that are directly relevant to its case.

    With Section 702 due to sunset this year, Congress should recognize that the court system it set up to approve surveillance orders and hear challenges to those orders bears little resemblance to our broader justice system. This inequity corrupts our fundamental democratic principles and is yet another reason Congress must end Section 702.

    Source: As a Provider Fought a Secret Surveillance Order, Court Denied It Access to Relevant Law | Electronic Frontier Foundation