Over the past 20 years, prompted by changing police tactics and a zero-tolerance attitude toward small crimes, authorities have made more than a quarter of a billion arrests, the Federal Bureau of Investigation estimates. Nearly one out of every three American adults are on file in the FBI’s master criminal database.
This is outrageous. And remember, this is only the files maintained by the FBI. There is seemingly no way to get such files purged at any point in time.
As FBI Director James Comey threatens to go to Congress to have back doors built into virtually all technology, it is probably a good time to remember that we have been down this road before.
In 1994, during the Clinton Administration, a huge battle was waged. On one side was the federal government, which sought to require that technology devices have a back door built in. The back door was created in a computer chip called the Clipper chip. On the other side of the battle were private citizens, well schooled in the risks that such back doors raise. Ultimately, the Clipper chip was not approved.
The Clipper chip has prompted what might be considered the first holy war of the information highway. Two weeks ago, the war got bloodier, as a researcher circulated a report that the chip might have a serious technical flaw. But at its heart, the issue is political, not technical. The Cypherpunks consider the Clipper the lever that Big Brother is using to pry into the conversations, messages and transactions of the computer age. These high-tech Paul Reveres are trying to mobilize America against the evil portent of a “cyberspace police state,” as one of their Internet jeremiads put it. Joining them in the battle is a formidable force, including almost all of the communications and computer industries, many members of Congress and political columnists of all stripes. The anti-Clipper aggregation is an equal-opportunity club, uniting the American Civil Liberties Union and Rush Limbaugh.
The Clipper’s defenders, who are largely in the Government, believe it represents the last chance to protect personal safety and national security against a developing information anarchy that fosters criminals, terrorists and foreign foes. Its adherents pose it as the answer, or at least part of the answer, to a problem created by an increasingly sophisticated application of an age-old technology: cryptography, the use of secret codes.
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The idea is to give the Government means to override other people’s codes, according to a concept called “key escrow.” Employing normal cryptography, two parties can communicate in total privacy, with both of them using a digital “key” to encrypt and decipher the conversation or message. A potential eavesdropper has no key and therefore cannot understand the conversation or read the data transmission. But with Clipper, an additional key — created at the time the equipment is manufactured — is held by the Government in escrow. With a court-approved wiretap, an agency like the F.B.I. could listen in. By adding Clipper chips to telephones, we could have a system that assures communications will be private — from everybody but the Government.
And that’s what rankles Clipper’s many critics. Why, they ask, should people accused of no crime have to give Government the keys to their private communications? Why shouldn’t the market rather than Government determine what sort of cryptosystem wins favor. And isn’t it true that the use of key escrow will make our technology so unattractive to the international marketplace that the United States will lose its edge in the lucrative telecommunications and computer fields? Clipper might clip the entire economy.
The article is worth a full read, particularly if you are unfamiliar with the history. It shows that time and again, the government seeks to collect digital information without regard to the adverse consequences to privacy and human dignity. The government’s arguments in favor of the Clipper chip back door are virtually word-for-word consistent with the claims from James Comey:
When illustrating the Government’s need to control crypto, Jim Kallstrom, the agent in charge of the special operations division of the New York office of the F.B.I., quickly shifts the discussion to the personal: “Are you married? Do you have a child? O.K., someone kidnaps one of your kids and they are holding your kid in this fortress up in the Bronx. Now, we have probable cause that your child is inside this fortress. We have a search warrant. But for some reason, we cannot get in there. They made it out of some new metal, or something, right? Nothing’ll cut it, right? And there are guys in there, laughing at us. That’s what the basis of this issue really is — we’ve got a situation now where a technology has become so sophisticated that the whole notion of a legal process is at stake here!”
FBI director James Comey delivered a speech yesterday at the Brookings Institution. His speech was a cry to require so-called “back doors” in virtually all technology encryption program to allow law enforcement to acquire otherwise private data. His claim is that otherwise law enforcement cannot effectively go after child pornographers and kidnappers, not terrorists. He tries to rename the FBI’s proposed back door into a front door.
There is a misconception that building a lawful intercept solution into a system requires a so-called “back door,” one that foreign adversaries and hackers may try to exploit.
But that isn’t true. We aren’t seeking a back-door approach. We want to use the front door, with clarity and transparency, and with clear guidance provided by law. We are completely comfortable with court orders and legal process—front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks.
Of course, a door is a door. And any designed path around encryption opens the user to great risk of intrusion by others than the FBI. Strong encryption is a public safety issue and individuals are not required to give law enforcement keys to their house. Further, crimes have been successfully prosecuted by law enforcement for years and years without eavesdropping on citizens.
Comey spoke at length about the Snowden disclosures and how encryption in response to that was screwing up the FBI’s easy access to private user data.
In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals.
Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch. It may be true in the movies or on TV. It is simply not the case in real life.
It frustrates me, because I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice. We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need.
Basically, he is arguing that any access that the FBI might find helpful must be put in place, and encryption be damned. It is a position of self-entitlement. As I mentioned above, law enforcement for years has lived without the ability to immediately reach all private data, which is what he is seeking.
Of course, he ends his talk with a threat to go to Congress to secure what he says he needs:
We also need a regulatory or legislative fix to create a level playing field, so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to.
In response to that threat, I found the following tweets by Congressman Justin Amash on point:
Keep dreaming. “@HuffingtonPost: FBI director calls on Congress to “fix” phone encryption by Apple and Google http://t.co/r0t5BN3Ayb” 10/16/14, 6:38 PM
The FBI director should be working to protect our rights, not seeking new ways to violate our rights. http://t.co/xvhAl3keWa 10/16/14, 6:45 PM
As part of NGI’s full operational capability, the NGI team is introducing two new services: Rap Back and the Interstate Photo System (IPS). Rap Back is a functionality that enables authorized entities the ability to receive ongoing status notifications of any criminal history reported on individuals holding positions of trust, such as school teachers. Law enforcement agencies, probation and parole offices, and other criminal justice entities will also greatly improve their effectiveness by being advised of subsequent criminal activity of persons under investigation or supervision. The IPS facial recognition service will provide the nation’s law enforcement community with an investigative tool that provides an image-searching capability of photographs associated with criminal identities. This effort is a significant step forward for the criminal justice community in utilizing biometrics as an investigative enabler.
Vice News has more detailed information and reaction from the civil liberties community. Excerpt:
The Next Generation Identification (NGI) system is a vast, centralized surveillance tool — and the stuff of totalitarian dystopia: fingerprint databases, iris scan details, more than 50 million images used for facial recognition (a.k.a. “faceprints”), and the capacity to hoard information of individualizing details like gait, voice pattern, and tattoos. Yet aside from a flurry of pained press releases from privacy groups and civil libertarians, the news of Big Brother’s ascension was met not with a yell but a whimper.
Such is the nature of a surveillance empire that was not built in a day. The NGI system took eight years and cost $1 billion in tax-payer funded contracts with companies like Lockheed Martin and BAE Systems to reach full capacity. It was constructed in large part from already existing law enforcement, Defense Department, and Homeland Security databases and biometric technologies. While staggering in scope, the system has been creeping into fruition, perhaps accounting for the muted response from the outrage machine — which has also burned itself out on more than a year’s worth of revelations about the NSA.
There is plenty to be concerned about with the FBI’s system, especially if we still entertain the idea that the agency’s primary goal is criminal investigation, not general civilian surveillance. The Electronic Frontier Foundation has noted that the FBI’s biometric databases are not limited to those who have been arrested. “You could become a suspect in a criminal case merely because you applied for a job that required you to submit a photo with your background check.” Indeed, the FBI’s NGI announcement included details about its “Rap Back” program, which specifically monitors and targets individuals in “positions of trust.”
If you were thinking “positions of trust” encompassed, say, municipal police forces around the country, think again. Rap Back monitors “non-criminal justice applicants, employees, volunteers, and licensees; Individuals under the supervision or investigation of criminal justice agencies.” In other words, as TechDirt notes, the system does not target employees of criminal justice agencies; just those under their “supervision,” like “parolees and those on probation.”
The NGI is a huge invasion of Americans’ privacy and, if it actually works, further embeds the surveillance state here in America.
Glenn Greenwald, writing in The Intercept, has listed by name several Americans who were secretly surveilled by the NSA and the FBI, based on information provided by Edward Snowden. This type of surveillance was (and probably continues to be) collected by [mis-]applying laws that are directed at terrorists. The Intercept story is worth a read.
According to documents provided by NSA whistleblower Edward Snowden, the list of Americans monitored by their own government includes:
Faisal Gill, a longtime Republican Party operative and one-time candidate for public office who held a top-secret security clearance and served in the Department of Homeland Security under President George W. Bush;
Asim Ghafoor, a prominent attorney who has represented clients in terrorism-related cases;
Hooshang Amirahmadi, an Iranian-American professor of international relations at Rutgers University;
Agha Saeed, a former political science professor at California State University who champions Muslim civil liberties and Palestinian rights;
The individuals appear on an NSA spreadsheet in the Snowden archives called “FISA recap”—short for the Foreign Intelligence Surveillance Act. Under that law, the Justice Department must convince a judge with the top-secret Foreign Intelligence Surveillance Court that there is probable cause to believe that American targets are not only agents of an international terrorist organization or other foreign power, but also “are or may be” engaged in or abetting espionage, sabotage, or terrorism. The authorizations must be renewed by the court, usually every 90 days for U.S. citizens.
Under current law, an American citizen can only be directly targeted by the FBI or CIA if such agencies seek a warrant in the FISA court. Warrants are notoriously easy to acquire in public court, but the FISA court has never publicly disclosed any such warrants, although they most certainly exist.
Needless to say, this is abuse of process and will only be stopped if and when the FISA laws are changed to require open hearings of all FISA court proceedings. And now, these targeted individuals will have standing to sue the intelligence agencies over the spying activities because they have proof, via the Edward Snowden documents, that they were in fact surveilled.
When Edward Snowden turned over a trove of NSA documents last year, he explained that he included the spreadsheet of monitored emails because he wanted to give people subjected to electronic surveillance the opportunity to challenge the spying as unconstitutional. For years, the government has succeeded in having such challenges dismissed on the ground that the various plaintiffs lack standing to sue because they could not prove that they were personally targeted.
Thanks to Snowden’s disclosures, those seeking to obtain such a ruling now have specific cases of surveillance against American citizens to examine. So do those charged with reforming the FISA process. Richard Clarke, a former counterterrorism official in the Clinton and Bush administrations, served on the recent White House intelligence review panel convened to address concerns raised by the Snowden revelations. If he had seen the NSA spreadsheet, Clarke says, he would have asked more questions about the process, and reviewed individual FISA warrants.
“Knowing that, I would specifically ask the Justice Department: How many American citizens are there active FISAs on now?” he says. “And without naming names, tell me what categories they fall into—how many are counterterrorism, counterintelligence, espionage cases? We’d want to go through [some applications], and frankly, we didn’t. It’s not something that five part-time guys can do—rummage through thousands of FISA warrants.”
The Wall Street Journal is reporting on the “outrage” in a Georgetown gated community over Janet Yellen‘s security detail. A number of residents are appalled at the “blue” uniforms worn by the detail, how fat many of the security forces are and that some of them actually smoke. FBI Director Robert Mueller also lives in the community. The article screams “parody,” but it is not.
As neighbors tell it, earlier this year, the security detail protecting new Federal Reserve Chairwoman Janet Yellenbarreled through the cul-de-sac where she lives in oversize vans loaded with guns, cameras and takeout pizza. It established an “armed camp” next door to Ms. Forman’s townhome, according to a written bill of grievances presented by concerned neighbors deeming the uniformed police presence “uncomfortable for residents of various religious persuasions,” such as Quakers.
Security trucks, it continued, “weighing approximately 7,000 pounds each” sit idling on the street for “approximately 22 minutes daily” at each Yellen morning pickup. When Ms. Yellen leaves her home, a second truck then “speedily pulls out of the security driveway…all the while spilling fluid onto the street, which has now left a permanent stain.” Hillandale bylaws expressly prohibit car fluid spills in the common areas.
Neighbors seem especially put off by the aesthetics of the security detail, in particular their blue uniforms and—in the words of one resident—”doughnut bellies.”
* * *
“Bob Mueller, who you would think would have a much more dangerous job dealing with terrorists all over the world, had people who were businesslike, didn’t socialize and waited for him outside the gate,” says one unhappy resident, sitting in a living room decorated in chintz, silk topiary and family silver. “Now we have this group, overweight, wearing the most ridiculous blue uniforms with the most ridiculous blue caps, and they have guns that are visible.” She declined to be named because she is worried about federal-government reprisals.
As the guards watch over Ms. Yellen, locals watch over the guards, saying they have seen them smoking, schlepping fast food and breaking the 15 m.p.h. speed limit.
Mr. Shawn and his family live down the street from the armed newcomers. “Some neighbors say it’s great, all the security that is in the neighborhood,” he says. “But these characters are only here for Janet Yellen. They’re not going to be distracted by robbers, rapists or any other thing. Besides, these guys couldn’t catch a thief if their lives depended on it.”
Kudos to Microsoft. The company successfully challenged the issuance of a National Security Letter (NSL) by the FBI with respect to one of Microsoft’s customers. Such letters routinely prohibit any disclosure of the letter to anyone else. In this case, the FBI backed down, which they have done a few times in the past after losing in court. In addition, Microsoft also secured a ruling from the trial court judge to disclose several related documents and a ruling that the NSL statutes are facially unconstitutional.
In a significant victory for transparency and free speech, a federal judge in Seattle granted Microsoft permission to unseal documents related to an FBI investigation into one of its cloud customers.
The case relates to a National Security Letter issued to Microsoft in 2013 that ordered the company to turn over information about one of its enterprise customers, whose identity remains a secret. The customer stores data on Microsoft’s Office 365, a service that lets companies keep email and work collaboration tools in the cloud.
Under the terms of the security letter, Microsoft was barred from disclosing the request to its customer or even describing the letter’s existence. These so-called “gag orders” have been an ongoing source of contention between the tech industry and the government, especially in the wake of leaks by former NSA contractor Edward Snowden.
Microsoft challenged the letter in court, saying the law the FBI used to obtain it violated the First Amendment, and was an unreasonable ban on free speech. In response, the FBI withdrew the demand for the letter — effectively backing down.
In a show of further legal courage, however, Microsoft returned to court to seek permission to disclose information about the process. In response, U.S. District Judge Richard Jones issued an order requiring three documents to be unsealed: Microsoft’s petition challenging the security letter; an agreement between Microsoft and the Justice Department over the FBI letter; and Jones’ unsealing order.
Declan McCullagh, writing at Wired Threat Level, has revealed yet another metadata collection program being forced on telecommunications companies. In this case the data is metadata related to use of the Internet, rather than telephones. It is based on the contorted legal rational for the telephone metadata collection program: in the view of the DOJ it is perfectly constitutional to collect metadata held by third parties. If Congress doesn’t act to over-ride the DOJ view, then virtually all information about you that is held by anyone else is opening to seizure without probable cause or a warrant. The massive increase in the volume such third-party records made possible by the information revolution is such a fundamental change that, at least as a policy matter, such records should be protected and require a subpoena to collect.
The U.S. government is quietly pressuring telecommunications providers to install eavesdropping technology deep inside companies’ internal networks to facilitate surveillance efforts.
FBI officials have been sparring with carriers, a process that has on occasion included threats of contempt of court, in a bid to deploy government-provided software capable of intercepting and analyzing entire communications streams. The FBI’s legal position during these discussions is that the software’s real-time interception of metadata is authorized under the Patriot Act.
Attempts by the FBI to install what it internally refers to as “port reader” software, which have not been previously disclosed, were described to CNET in interviews over the last few weeks. One former government official said the software used to be known internally as the “harvesting program.”
Carriers are “extra-cautious” and are resisting installation of the FBI’s port reader software, an industry participant in the discussions said, in part because of the privacy and security risks of unknown surveillance technology operating on an sensitive internal network.
It’s “an interception device by definition,” said the industry participant, who spoke on condition of anonymity because court proceedings are sealed. “If magistrates knew more, they would approve less.” It’s unclear whether any carriers have installed port readers, and at least one is actively opposing the installation.
In a statement from a spokesman, the FBI said it has the legal authority to use alternate methods to collect Internet metadata, including source and destination IP addresses: “In circumstances where a provider is unable to comply with a court order utilizing its own technical solution(s), law enforcement may offer to provide technical assistance to meet the obligation of the court order.”
Court says (2006) FedGov can do live monitoring of email accounts, including To: and From: lines, without a warrant: https://t.co/gmEbvQklKr
According to Declan McCullagh at c|net, Google is experimenting with encrypting customer files on its cloud service called Drive. This is the kind of customer service that should be standard throughout all cloud services.
Google has begun experimenting with encrypting Google Drive files, a privacy-protective move that could curb attempts by the U.S. and other governments to gain access to users’ stored files.
Two sources told CNET that the Mountain View, Calif.-based company is actively testing encryption to armor files on its cloud-based file storage and synchronization service. One source who is familiar with the project said a small percentage of Google Drive files is currently encrypted.
The move could differentiate Google from other Silicon Valley companies that have been the subject of ongoing scrutiny after classified National Security Agency slides revealedthe existence of government computer software named PRISM. The utility collates data that the companies are required to provide under the Foreign Intelligence Surveillance Act — unless, crucially, it’s encrypted and the government doesn’t possess the key.
“Mechanisms like this could give people more confidence and allow them to start backing up potentially their whole device,” said Seth Schoen, senior staff technologist at theElectronic Frontier Foundation in San Francisco.
Back in the 1990s, in what’s remembered as the crypto wars, the FBI and NSA argued that national security would be endangered if they did not have a way to spy on encrypted e-mails, IMs and phone calls. After a long protracted battle, the security community prevailed after mustering detailed technical studies and research that concluded that national security was actually strengthened by wide use of encryption to secure computers and sensitive business and government communications.
The Obama administration for more than two years permitted the National Security Agency to continue collecting vast amounts of records detailing the email and internet usage of Americans, according to secret documents obtained by the Guardian.
The documents indicate that under the program, launched in 2001, a federal judge sitting on the secret surveillance panel called the Fisa court would approve a bulk collection order for internet metadata “every 90 days”. A senior administration official confirmed the program, stating that it ended in 2011.
The collection of these records began under the Bush administration’s wide-ranging warrantless surveillance program, collectively known by the NSAcodename Stellar Wind.
Eventually, the NSA gained authority to “analyze communications metadataassociated with United States persons and persons believed to be in the United States”, according to a 2007 Justice Department memo, which is marked secret.
And, although that program was stopped in 2011, a similar program replaced it.
The Guardian is also reporting the following regarding James Comey, Obama’s nominee for head of the FBI:
James Comey famously threatened to resign from the Justice Department in 2004 over the warrantless surveillance of Americans’ internet records. But once Justice Department and National Security Agency lawyers found a novel legal theory to cover the surveillance, the man Barack Obama tapped last week to lead the FBI stayed on as deputy attorney general for another year as the monitoring continued.
A remarkable document released by The Guardian gives the public its first in-depth look at the legal process that justified the dragnet surveillance programs undertaken during President George W. Bush’s first term. And they make clear that lots of people involved in the process — government lawyers, judges, and the lawyers of private telecommunications companies — believed the Bush administration had stepped over the legal line.
* * *
But rather than asking Congress to amend FISA, President Bush took the law into his own hands on Oct. 4, 2001. He signed an “Authorization,” drafted by vice presidential counsel David Addington, purporting to give the NSA broad authority to intercept telephone and Internet communications if at least one party to the communication was located outside the United States.
The White House Office of Legal counsel wrote a legal opinion defending the legality of wiretapping based on Bush’s Authorization. The White House refused two requests by NSA lawyers to see this document, though Addington did “read a few paragraphs of the opinion” over the phone to NSA General Counsel Robert Deitz. The NSA’s inspector general stated that he found it “strange that NSA was told to execute a secret program that everyone knew presented legal questions, without being told the underpinning legal theory.”
A newly disclosed top secret document lauds the National Security Agency’s “productive” and long-standing surveillance “partnership” with a pair of telecommunications providers — that permitted tapping into their fiber links — but without naming names.
This is where things get interesting for clue sleuths.
Even in the top-secret document published by the Guardian today, the firms are described only as “Company A” and “Company B.” But the NSA’s inspector general did disclose that, at the time the program was being formed in the wake of the September 11 attacks, the agency entered into the partnerships because Company A had access to 39 percent of international phone calls, and Company B had access to 28 percent.
Those figures closely correspond with Federal Communications Commission data (PDF). The most recent figures publicly available in late 2001, when the carrier “partnerships” were being expanded, reveal that AT&T carried 38.2 percent of international minutes billed to U.S. carriers. MCI, now part of Verizon, carried 29.1 percent.
Verizon spokesman Ed McFadden would not confirm or deny his employer’s identity as company B, and told CNET today that the company “always requires appropriate legal process” when responding to requests from any government agency. AT&T did not respond to questions.
“Collection partnerships” with these two firms have allowed the spy agency to vacuum up e-mail and phone call content by tapping into their “fiber-optic cables, gateway switches, and data networks,” says the 2009 report. That’s consistent with previous reports that AT&T permitted the NSA to tap into its telecommunications facilities.
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The Guardian’s report today also cited a December 2012 document prepared by the NSA’s Special Source Operations (SSO) directorate discussing classified programs codenamed EvilOlive and ShellTrumpet, which had “processed its one-trillionth metadata record” at the time. The newspaper, which did not make the SSO document public, summarized it as:
With this new system, the NSA is able to direct more than half of the internet traffic it intercepts from its collection points into its own repositories. One end of the communications collected are inside the United States. The NSA called it the “One-End Foreign (1EF) solution”. It intended the program, codenamed EvilOlive, for “broadening the scope” of what it is able to collect….This new system, SSO stated in December, enables vastly increased collection by the NSA of Internet traffic. “The 1EF solution is allowing more than 75% of the traffic to pass through the filter,” the SSO December document reads. “This milestone not only opened the aperture of the access but allowed the possibility for more traffic to be identified, selected and forwarded to NSA repositories.”
One interpretation of EvilOlive is that the NSA is acquiring the majority of Americans’ confidential Internet and phone communications — or at least the majority flowing through the networks of its partner telecommunications companies — and archiving them for years. Any subsequent restrictions on access by intelligence analysts would be policy-based, not technology-based, and could be modified in the future to be more permissive.
The Obama administration has declined to discuss the NSA’s vast collection apparatus in any detail. A statement last week from James Clapper, the director of national intelligence, said an analyst cannot “can (sic) eavesdrop on domestic communications without proper legal authorization” — but, pointedly, did not say what “proper legal authorization” meant.
“Our footprint is very small. We have very few,” [FBI Director Robert] Mueller said in response to an inquiry on unmanned aircraft by Sen. Chuck Grassley (R-Iowa).
Grassley asked: “Does the FBI own or currently use drones and for what purposes?”
“Yes, for surveillance.”
Grassley continued: “Does the FBI use drones for surveillance on U.S. soil?”
“Yes, in a very, very minimal way, and seldom.”
Moments later, Sen. Dianne Feinstein (D-California) said drones were a huge privacy threat to Americans. The director was unprepared to answer Feinstein’s questions on what “privacy strictures” are in place to protect Americans’ privacy in connection to FBI drone use.
A Senate intelligence committee member, Mark Udall, Democrat of Colorado, later questioned whehter such use of drones was constitutional. “Unmanned aerial systems have the potential to more efficiently and effectively perform law enforcement duties, but the American people expect the FBI and other government agencies to first and foremost protect their constitutional rights,” Udall said in a prepared statement.
“I am concerned the FBI is deploying drone technology while only being in the ‘initial stages’ of developing guidelines to protect Americans’ privacy rights. I look forward to learning more about this program and will do everything in my power to hold the FBI accountable and ensure its actions respect the US constitution.”
Another senator, Chuck Grassley, Republican of Iowa, also expressed concern. Asked whether the FBI drones were known about before the Mueller hearing, Grassley told CNN “absolutely not.” Grassley added the FBI was asked last year whether agents were using drones but the bureau never got back with an answer.
From a civil liberties perspective, the [NSA telephone vacuuming] program could hardly be any more alarming. It’s a program in which millions of innocent people have been put under the constant surveillance of government agents. It’s analogous to the FBI stationing an agent outside every home in the country to track who goes in and who comes out. It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.
Glenn Greenwald, reporting for The Guardian, says that The Guardian is in possession of a secret court order issued in April that requires Verizon to report daily to the FBI detailed information on every phone call placed by Americans, domestic or international. The order is signed by Roger Vinson, Judge of the United States Foreign Intelligence Court.
The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
* * *
The Guardian approached the National Security Agency, the White House and the Department of Justice for comment in advance of publication on Wednesday. All declined. The agencies were also offered the opportunity to raise specific security concerns regarding the publication of the court order.
The court order expressly bars Verizon from disclosing to the public either the existence of the FBI’s request for its customers’ records, or the court order itself.
* * *
It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.
The court order appears to explain the numerous cryptic public warnings by two US senators, Ron Wyden and Mark Udall, about the scope of the Obama administration’s surveillance activities.
* * *
These recent events reflect how profoundly the NSA’s mission has transformed from an agency exclusively devoted to foreign intelligence gathering, into one that focuses increasingly on domestic communications. A 30-year employee of the NSA, William Binney, resigned from the agency shortly after 9/11 in protest at the agency’s focus on domestic activities.
In the mid-1970s, Congress, for the first time, investigated the surveillance activities of the US government. Back then, the mandate of the NSA was that it would never direct its surveillance apparatus domestically.
At the conclusion of that investigation, Frank Church, the Democratic senator from Idaho who chaired the investigative committee, warned: “The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter.
Consider for a moment what tracking of your phone call numbers dialed and numbers received can reveal, especially when combined with other data, about the lives of US citizens, including you, who happen to be, like me, Verizon customers. Read the order yourself. Are you agreeable to this type of surveillance of American citizens? And don’t for a moment think that similar orders are not in place with all the other US carriers.
I think this order provides sufficient evidence to begin impeachment proceedings against both President Obama and Judge Roger Vinson for violating the explicit rights provided under the Constitution. The oath of the President requires him or her to “protect and defend the Constitution of the United States.” In all seriousness, this seems to be the end of privacy and the end of Fourth Amendment protection for United States citizens. Screw the IRS issues, screw Benghazi, screw the Eric Holder controversies. This is the only approach that will stop the continuing elimination of privacy rights in this country. This abuse trumps everything. Trust but verify, as Ronald Reagan once said.
Former FBI counterterrorism agent Tim Clemente told CNN last month that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clemente added in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the NSA — “there’s a way to look at digital communications in the past.”
And The Guardian explains how telephone metadata (which Verizon is required to provide) can reveal much about your life.
The government has long argued that this information isn’t private or personal. It is, they say, the equivalent of looking at the envelope of a letter: what’s written on the outside is simple, functional information that’s essentially already public.
That forms the basis of collection: because it’s not personal information, but rather “transactional” or “business” data, there’s no need to show probable cause to collect it. Collection is also helped by the fact this information is already disclosed by callers to their carriers – because your phone number is shared with your provider, you’re not treating it as private.
But that is not a view shared by privacy advocates. Groups such as the Electronic Frontier Foundation say that by knowing who an individual speaks to, and when, and for how long, intelligence agencies can build up a detailed picture of that person, their social network, and more. Collecting information on where people are during the calls colours in that picture even further.
One recent case that highlights this tension is the recent subpoenas of the call records of Associated Press journalists, which led to clashes between the media and the White House over what was widely seen as intrusion into a free press.
The information collected on the AP was telephony metadata: precisely what the court order against Verizon shows is being collected by the NSA on millions of Americans every day.
And Twitter is starting to light up:
I guess I can put up with crappy AT&T cell service then… bit.ly/120hKhM
In a brief filed on [in March] (PDF), EFF continued its fight against secret surveillance law, asking the D.C. Circuit Court of Appeals to order the release of a secret opinion of the Office of Legal Counsel (OLC).
The opinion was generated as part of a lengthy Inspector General investigation (PDF) into the FBI’s use of unconstitutional National Security Letters, so-called “exigent letters,” and other illegal methods of obtaining customer records. The OLC’s opinion provides the federal government with the authority to obtain private call-detail records in “certain circumstances,” without any legal process or a qualifying emergency, and despite federal laws to the contrary. So far, the DOJ has refused to disclose what those circumstances are, and has even refused to disclose the statute on which the government bases its purported authority.
EFF has long argued that, when the government interprets a law in a way that shapes or affects the rights of the public, the public is entitled to know what that interpretation is. Hiding the government’s interpretations of public laws – especially when those interpretations are unlikely to be tested in court – constitutes the perpetuation of “secret law.” But secret law has no place in a democracy; on Friday, we asked the D.C. Circuit to affirm that simple principle and to order the government to disclose the OLC’s legal interpretation.
The formal opinions of the OLC are among the the most obvious, and pernicious, examples of government secret law. OLC has the authority, delegated by the Attorney General, to issue legal opinions and interpretations that are binding on other Executive branch agencies. Over the past decade, OLC opinions have provided the legal authority for some of the federal government’s most controversial (and, ultimately, illegal) practices: torture, warrantless wiretapping, and – more recently – the targeted killing of American citizens have all found legal “justifications” in OLC opinions. The Executive branch has also shrouded these opinions in secrecy.