The Lives of Others Revisited - TTG

In June of 2013, I posted about the revelations of Edward Snowden. At that time we didn’t know it was Snowden who leaked NSA’s secrets to Glenn Greenwald and Laura Poitras. Nor did we realize the extent of what Snowden took from the NSA. We still don’t know what else might be revealed, but it is hard to argue that Snowden hasn’t provided a major impetus to the fight to restore our Fourth Amendment rights. A major battle is now coming to a head with today’s appeals court ruling that NSA’s phone spying is illegal and the sunsetting of Section 215 of the Patriot Act governing NSA’s bulk domestic surveillance program on 1 June.

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(Reuters) - A U.S. spying program that collects data about millions of Americans' phone calls is illegal, a federal appeals court ruled on Thursday, adding pressure on lawmakers to decide quickly whether to end or replace the program, which was intended to help fight terrorism.

While stopping short of declaring the program unconstitutional, the 2nd U.S. Circuit Court of Appeals in Manhattan said Congress did not authorize the National Security Agency to collect Americans' phone records in bulk. The existence of the NSA's collection of "bulk telephony metadata" was first disclosed in 2013 by former NSA contractor Edward Snowden.

Writing for a three-judge panel, Circuit Judge Gerard Lynch said Section 215 of the Patriot Act governing the collection of records to fight terrorism did not authorize what he called the NSA's collection of a "staggering" amount of information, contrary to claims by the Bush and Obama administrations. "Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans," Lynch wrote in a 97-page decision. "We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate." (Reuters)

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NEW YORK – In a landmark decision, a federal appeals court unanimously ruled today that the NSA’s phone-records surveillance program is unlawful. The Second Circuit Court of Appeals held that the statute the government is relying on to justify the bulk collection of phone records – Section 215 of the Patriot Act – does not permit the gathering of Americans’ sensitive information on such a massive scale. The case was filed by the American Civil Liberties Union and the New York Civil Liberties Union in June 2013, immediately after NSA whistleblower Edward Snowden disclosed the existence of the program. 

“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” said Anthony D. Romero, executive director of the ACLU. “Congress needs to up its reform game if it’s going to address the court’s concerns.” The government had argued in the case, ACLU v. Clapper, that the court should not consider the lawfulness of the program at all, arguing that the ACLU lacked “standing” to challenge the surveillance and that Congress had “precluded” judicial review except by the Foreign Intelligence Surveillance Court,  which meets in secret, rarely publishes its decisions, and generally hears argument only from the government. Today’s decision rejects those arguments.  

The ruling aligns with the lower court decision in a similar lawsuit in Washington, Klayman v. Obama, in which U.S. District Judge Richard J. Leon found the NSA program to be likely unconstitutional. The government’s appeal of that case was argued on November 4. Another challenge to the phone-records program was argued before the Ninth Circuit Court of Appeals on December 4. 

“This decision is a resounding victory for the rule of law,” said ACLU Staff Attorney Alex Abdo, who argued the case before the three-judge panel in September. “For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.” (ACLU)

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I think it will be difficult to prevent the demise of Section 215 of the Patriot Act on June 1st. The USA Freedom Act has bipartisan support and will ostensibly rein in NSA’s bulk surveillance programs, but many say it is weak and does not go far enough. This court ruling may help Justin Amash and others preserve the more stringent provisions of the USA Freedom Act, however flawed it may be, or at least prevent amendments  to further water it down. It also pretty much rules out a simple reauthorization of Section 215 that Mitch McConnell is pushing. In fact, I think there is a good chance that Section 215 may just wither away on June 1st. However, those who worship at the altar of surveillance will not give up their power willingly and they will play dirty. 

These judicial and legal maneuvers are just one front in the battle to preserve the Fourth Amendment. Another equally, if not more important, is the technical front. Apple and Android are encrypting their customers’ data at their request, much to the chagrin of the FBI and NSA. Bruce Schneier makes an excellent point about security in his recent column about the FBI’s cellular network collection technology. “We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where everyone can spy, or a world where no one can spy. We can be secure from everyone, or vulnerable to anyone.” Developers like Jacob Appelbaum and the TOR team are also fighting the good fight for public privacy. TOR has been the bane of the FBI and the NSA for quite some time. Even Kim Dotcom, the MPAA’s public enemy number one and modern day P.T. Barnum, is working on storage and communication technologies to protect our privacy. He may be a scoundrel and a rascal, but I like that big bastard. And we may need some scoundrels and rascals to take on the much worse scoundrels and bastards of the surveillance state.

TTG

Comments

[AEL]

Also see Schneier's blog for examples of how powerful metatdata analysis can be:

https://www.schneier.com/blog/archives/2015/05/another_example.html

[Jack]

TTG

What is interesting is how bipartisan the entrenchment of the surveillance state is. Harry Reid and Mitch McConnell, both want a secretive state that makes Orwell eerily prescient. The appeals court it seems just ruled that the collection was not authorized in the legislation, not that it was unconstitutional.

Clapper was not prosecuted for lying that such mass collection was taking place. So, do you think they will continue doing it anyway? And/or find another "technical" justification for it? After all its only for the people's safety! And they can continue to argue in the next judicial proceedings that the plaintiffs have no standing or the perennial state secrets argument.

[ISL]

Dear TTG;

One wonders if being forced to do less bulk vacuum spying will force more humint (human intelligence) into the process. And while the massive sweep it all approach clearly has benefits as a pre-cursor to suppressing internal peaceful dissent, I fear (and hope never to live to see here in the US - or in the Republic of California) that peaceful dissent will reformulate into Syria-style internal dissent - where our current intelligence approach has been demonstrably poor at guiding policy and strategy.

And yes, Syria continues shattering from external interferences feeding the flames, but given the US precedent has made explicit in recent decades (rules are for little countries, just as bankruptcy if for little people), IMO it is certain that external powers WILL interfere in internal US conflicts. Heck, our congress already is for sale to a select list of external players, already.

[The Twisted Genius]

Jack,

Unless Congress sends a clear, emphatic NO to unwarranted domestic collection along with a cutoff of funding and threat of prosecution, I am certain the NSA will continue this collection. They will find a legal loophole, tweet the definition of their collection methodology or Obama will sign some finding to move it deeper into the secrecy hole. One point i find quite exasperating is that this bulk collection program doesn't seem to work. It's just a giant suck on limited resources by well placed contractors and national security true believers. It's security theater to fool the masses and those in Congress who control the purse strings.

http://www.nytimes.com/2015/04/25/us/politics/value-of-nsa-warrantless-spying-is-doubted-in-declassified-reports.html?_r=1

[The Twisted Genius]

ISL,

My beef is with domestic bulk collection. If the NSA uses these techniques against foreigners, including our allies, my only objection is a matter of risk vs. gain. I hope ending the bulk collection would free up resources for increased HUMINT and a greater emphasis on online HUMINT. I know from experience that online HUMINT works.

A great danger in bulk collection and data mining is that it is too easily manipulated. If you dig deep enough, you can find dirt or implications of dirt on anyone. You can always cherry pick some bits of information to support whatever narrative you are trying to create. This can even be done unconsciously aided by an imperfect search algorithm.

[anna-marina]

Note that nobody is held responsible for the assault on the Fourth Amendment. There is a strong impression that the Deciders (the upper echelon of Plutocracy) want to have an absolute control over populace. The laws make no impediment for them. The resulting loss of meritocracy has been ruining the State - and endangering the lives of all, including the puppeteering psychopaths.

[ISL]

TTG: Salient point, re: bulk collection that finds domestic discontent everywhere and anywhere and then (for a secret, dye-process-free approach) seemingly randomly punishes those it IDs. IMO this likely will have unintended consequences.

When Richard Feynman was a kid, he related a story where he non-plussed his boss by "fixing radios by thinking." As thinking is hard to bean count, its less attractive in a dysfunctional bureaucratic world than other (meaningless) metrics. There certainly is one of the Peter Principals that only resolves when the system collapses.

[different clue]

The Twisted Genius,

I wonder how much of it is to find "blackmail-exploitable" information on officeholders and other people in power positions, to extort their support for this or that policy or favor. And as you pointed out, imperfect search algorithms, or malicious search algorithms can yield material which can be worked up into the cardboard-replica scale model of blackmailable material.

[mbrenner]

One technical-legal point. A change that allows private companies rather than NSA to acquire and store the metadata likely has no practical effect. First, the NSA or CIA or DOJ or whomever can request a warrant to access it. FISA never refuses. Those warrants are broad and allow stepping-stones expansion of the accounts surveyed. Moreover, once 'inside,' the NSA can do pretty well what it pleases - no one is monitoring or inclined to interfere. Second, other members of the 5 party consortium (like the Brits' CCHQ) can access pretty much anything we can - upon request, and then transfer it. (This latter point has been confirmed for me by Schneier and a few others).Who would ever know? or care other the very agencies that will be circumventing whatever little rules the legislation winds up stipulating.

[mbrenner]

This use of another partner service to get around one government's restrictions has already occurred and been documented. Unfortunately, I forget the specifics - which could have been in one of the Snowden documents. I have a hazy recollection that it may have involved NSA spying on British targets for the CCHQ or both spying on German targets for the BND (which now is in hot water for secretly and illegally violating German law on their own volition - although, since commercial firms were on the target list, we can guess who ultimately was behind it). We are faced with a plague and all we are doing over here is discussing whether to do some modest spraying of insect repellant. And everyone in the know is fully aware that it is purely cosmetic (except the NY Times - perhaps)

[The Twisted Genius]

mbrenner,

The fact that NSA, FBI and the Five Eyes alliance will do whatever they can (and they can do a lot) to circumvent any legislation conjured up to prevent them from this type of collection is no reason not to push for this legislation. It is also the reason we have support the security developers, largely in the open source community in their quest for universal, user friendly encryption.

Years ago the IC was apoplectic over Skype. I was there. For a time they could not break it and devoted a lot of resources to do just that. One it became commercial, the problem was solved. The IC and Microsoft are buddies. A new open source challenge to the surveillance mavens is emerging from Open Whisper Systems started by a character called Moxie Marlinspike. This is from his bio:

"In the past, I've worked as a software engineer, hacker, sailor, captain, and shipwright. I used to travel a lot; I've hopped freight trains across the US from coast-to-coast a bunch of times, have gotten some really great and some really terrible rides hitchhiking all across America, and have sailed a few near-derelict sailboats as far as I could take them. I currently live in San Francisco.

I like computer security and software development, particularly in the areas of secure protocols, cryptography, privacy, and anonymity. But I also secretly hate technology, am partially horrified with the direction "geek" culture has gone, and have little affection for the weird entrepreneur scene that's currently devouring the Bay Area.

I like sailing, have a Master's mariner license, and used to do yacht deliveries world-wide. I'm interested in sailing without engines, and draw great inspiration from the likes of Moitessier, as well as the entire 1968 Golden Globe crew. I've spent enough time on the water to love the ocean, but also to be constantly terrified of it.

In general, I hope to contribute to a world where we value skills and relationships over careers and money, where we know better than to trust cops or politicians, and where we're passionate about building and creating things in a self-motivated and self-directed way."

https://whispersystems.org/#page-top

[mbrenner]

The case that you make for supporting this weak legislation is difficult to refute - if the environment were static and public discourse logical. However, neither is the case. As I see it, the Snowden revelations - and the embarrassing inability of the IC leaders to address honestly the issues raised - has opened a window for significant change that rapidly is closing. Virtually the entire Establishment, led by the White House, has been trying to shut it with as little fresh air allowed in as possible. What is under consideration entails only a few CCs of fresh air. The attentive public already is losing interest. So, the representation of this weak legislation as something "significant" or a "sharp break" - as NYT front page stories refer to it - is deceitful. It creates the impression that something has changed when in fact nothing fundamental will have changed at all. The entire Intelligence game in the post-9/11 era can be viewed as a hoax - in terms of exaggerated threat perception, and inappropriate and expensive means deployed to achieve not a single act of prevention. Current talk of reform strikes me as being in line with what has become institutionalized deceit. If we can't do better than this, then at least let's highlight who and for what reasons is opposing serious action.

[The Twisted Genius]

mbrenner,

The public in general has no interest in this issue. There never was a huge public outcry for this legislation. The insurgency opposing the surveillance state has always been a minority and always will be. That the way of all insurgencies. We have to take our little victories wherever we can. In this case, I sincerely hope Section 215 dies on 1 June of legislative inaction. Failing that, the USA Freedom Act would at least be another small victory. I actually have more faith in the efforts of people like Marlinspike, Appelbaum and even Dotcom to enable universal encryption and anonymity. That would be the best guarantor of our Forth Amendment rights in the digital world.

[William R. Cumming]

As I have previous stated [argued] the judicial review of post 9/11/01 events has not only not been completed but barely started.

SCOTUS decision making is IMO increasingly irrational in the NATIONAL SECURITY arena and in fact barely started.

As I sidebar I often post comments on the HLDSWatch.com blog. I have recently given a failing grade to DHS on the basis of failing in accomplishing the key missions and goals assigned it in its formation.

Those missions ranked in priority were:

1. Detection of WMD's domestically by enemies of the USA and response and recovery and mitigation of any incident or event occurring domestically. BTW IMO the US is the world's leading proliferator of WMD since 1945.

2. Protection of CI [critical infrastructure] including cyber security.

3. Collection, processing, analysis of all domestic intelligence while protecting privacy, civil rights, and civil liberties.

My analysis remains available on that blog. Interesting to me is that the Congress has held almost no oversight on these issues. And fascinated that a bill may become law forcing the Congress to review proliferation issues for almost the first time since the Permanent Joint Committee on Atomic Energy was established and abolished.

[William R. Cumming]

CORRECTION: HLSWatch.com

[robt willmann]

The best source for on-going information and analysis of proposed laws in the U.S. Congress and the machinations and hijinks associated with domestic surveillance and spying is Marcy Wheeler, who demonstrates that a graduate degree in literature in the U.S. can still be valid--

https://www.emptywheel.net/2015/05/02/emptywheel-coverage-of-usa-f-redux-or-prism-for-smart-phones/

https://www.emptywheel.net/2015/05/08/how-the-nsa-connection-chains-without-calls/

https://www.emptywheel.net/2015/05/07/edward-snowden-richard-burr-exposes-ip-address-dragnet-on-senate-floor/

And she shows how Senator Burr's speech on the senate floor, discussed in the link above, was sanitized and censored before it went into the Congressional "Record" [sic]--

https://www.emptywheel.net/2015/05/08/richard-burrs-ip-dragnet-disappears-into-the-memory-hole/

Her website is of course www.emptywheel.net.

Previously, TTG made a post on this general issue, and I made a note to it about the fact that the individual States in the U.S. can look to their own constitutions and pass their own laws about surveillance, wiretapping, privacy, and so on; former U.S. Supreme Court Judge William Brennan wrote an influential law review article encouraging this when he saw the handwriting on the wall. (I am preoccupied at the moment and not able to go back and find the posting and link.)

The proposed legislation in Congress on domestic spying illustrates the principle that still is getting no discussion, although the public would embrace it, and that is that the U.S. Constitution provides the minimum protections, or the "floor" of civil liberties, and Congress can by legislation pass laws making existing protections stronger and can create new and better protections, all with enforcement mechanisms, including making it a crime if a person, employed by the government or not, violates the law. Even Robert Bork accepted and agreed with this principle. In other words, the focus should not be on the 4th Amendment and rolling the dice with federal judges on interpreting the amendment in a useful and protective way, but rather should be on getting a much more comprehensive, specific, and enforceable "4th Amendment" written as a federal law by Congress. Then, federal judges are bound to enforce the law passed by Congress. And, of course, you can write into the new federal law procedural rules that easily give you "standing" to file a lawsuit against a governmental entity or person who violates the protections the new law would give to you on the subject of surveillance, data collection and use, privacy, and so forth, and give you a right to a jury trial.

As an aside, the Anti-Patriot Act included a worthless, Mickey Mouse section giving you the right to file a lawsuit if a violation occurred (although since the activities under the Act are secret, you cannot find out if you are the subject of illegal conduct!). The kicker is that if you somehow discovered a governmental violation of the Anti-Patriot Act, you can file your lawsuit but cannot get a jury trial; the trial has to occur before a federal judge only!

I am against the present laws proposed in Congress on domestic surveillance, because they really do not change anything, just like the Dodd-Frank financial "reform" law changed nothing about the basic structure and function of the financial system and on its ability to defraud the public. It is better to keep the issue of domestic surveillance on the front burner with the continuous dates for certain sections to sunset and expire automatically, and let the Foreign Intelligence Surveillance "Court", although mostly a rubber stamp, keep its current restrictions, along with its ability to establish additional restrictions.

Unless a new law is proposed in Congress that greatly restricts domestic surveillance, creates new procedures that do away with the "standing" problem and the "state secrets privilege" in this regard that are used to torpedo lawsuits, and criminal sanctions if the surveillance and privacy rules are not followed, we will be no better off. In fact, the situation will be worse, because Congress will then say it has "done something about it" and will wash its dirty hands of the issue.

As food for thought, what little bit of technology has not been part of the debate? Especially now that all telephone switches were required to be digital in the CALEA law passed by Congress in the 1990's (when the Clintons were in the White House, as you might expect).

Voice prints. You call on the telephone, your voice is translated into digital data for transmission, and ....

[William R. Cumming]

The term DISTRIBUTED THREATS AND DISTRIBUTED DEFENSE soon will be appearing widely in US National Security and Homeland Security circles.

Surveillance likely to be increased not decreased according to authors of THE FUTURE OF VIOLENCE Gabriella Blum and Benjamin Wittes. The first 80 pp [several chapters] discuss scenarios possible or probable.

I saw a panel discussion of this book on C-span booknotes.

Revealed in the panel discussion is the factoid that the UN itself in some report has described 45 of its members that are security threats to the rest of the 193 members.

[mbrenner]

"As an aside, the Anti-Patriot Act included a worthless, Mickey Mouse section giving you the right to file a lawsuit if a violation occurred (although since the activities under the Act are secret, you cannot find out if you are the subject of illegal conduct!). The kicker is that if you somehow discovered a governmental violation of the Anti-Patriot Act, you can file your lawsuit but cannot get a jury trial; the trial has to occur before a federal judge only! "

I believe that there is another 'kicker' - having your legal standing as a plaintiff recognized by the courts. A number of complaints have been dismissed on the grounds that the plaintiffs have not shown that they were affected directly by the laws/regulations in question and, of course, suffered no damages. The privilege of protesting the constitutionality of a stature per se is strictly limited.

[William R. Cumming]

IMO Congress will allow continued massive data collection by the private Telecommunications firms in the USA with the federal government being able to access through warrants or so-called NATIONAL SECURITY LETTERS!

[William R. Cumming]

YUP! The Hoover files reincarnated for the modern world.

[William R. Cumming]

EVEN SCOTUS seems unable to read the Forth Amendment!

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[William R. Cumming]

Agree!

[William R. Cumming]

WOW! Come visit!

[confusedponderer]

Well, it appears that the goons from DHS and/or the NSA consider Moxie Marlinspike (by the way, what an epic name) a threat, or at least 'person if interest' for his efforts.

http://www.wired.com/2010/11/hacker-border-search/

[Charles I]

Would that it will only be "random" punishment; rather it will be "selective"