Megalextoria

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As originally enacted, Section 702 expires every few years, giving lawmakers the chance to reexamine the broad spying powers that impact their constituents.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.

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TELL CONGRESS TO END WARRANTLESS SURVEILLANCE

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

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