ACLU seeks access to 23 secret surveillance laws

Via The Intercept:

THE ACLU HAS identified 23 legal opinions that contain new or significant interpretations of surveillance law — affecting the government’s use of malware, its attempts to compel technology companies to circumvent encryption, and the CIA’s bulk collection of financial records under the Patriot Act — all of which remain secret to this day, despite an ostensible push for greater transparency following Edward Snowden’s disclosures.

The opinions were written by the Foreign Intelligence Surveillance Court. On Wednesday, the ACLU and the Yale Law School Media Freedom Clinic filed a motion with the court requesting that those opinions be released.

“The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow,” said Patrick Toomey, a staff attorney with the ACLU’s National Security Project. “These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

Some of the opinions identified by the ACLU offer interpretations of Section 702 of the Foreign Intelligence Surveillance Act, a controversial provision that allows the government to conduct mass surveillance on American’s transnational communications. The authority is set to expire in December 2017.

Disclosure of the opinions would shed light on how the government understands the boundaries of its spying power. Earlier this month, for example, after Reuters reported that Yahoo is secretly scanning every customer’s incoming email, anonymous officials told the New York Times that that action was based on an individualized order from the secret court. Disclosure of the order would offer insight into why the government thinks that is legal. Yahoo, for its part, on Wednesday urged the Director of National Intelligence to release and explain the court order in question.

The ACLU identified the 23 still-secret opinions by combing through press clippings and publicly released opinions. A report released Tuesday by the Brennan Center for Justice, which was based on documents obtained under the Freedom of Information Act, similarly found that the government has kept classified 25 to 30 significant court opinions and orders dating from 2003 to 2013.

Citizens should be entitled to read the law. Secret laws have no place in a civilized society.

Microsoft and Google jointly sue government

According to a release from Brad Smith, Microsoft’s General Counsel, both Microsoft and Google are suing the Federal government for the right to disclose significantly more information regarding the scope of governmental surveillance.  Apparently, negotiations to do so have broken down.

Excerpt:

Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector.  With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely.  And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

The United States has long been admired around the world for its leadership in promoting free speech and open discussion.  We benefit from living in a country with a Constitution that guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest.  We believe there remains a path forward that will share more information with the public while protecting national security.  Our hope is that the courts and Congress will ensure that our Constitutional safeguards prevail.

This should hardly be surprising, since lack of transparency places the online operations of both companies (and a host of others) at risk from major user departures, particularly for those outside the United States.

Choose a side, tech companies

Jeff Jarvis has a great essay in The Guardian demanding that tech companies detail their collaboration with the NSA and other governmental snoopers. Users have a right to know the extent to which their data is being delivered to the surveillance state.

Excerpt:

Technology companies: now is the moment when you must answer for us, your users, whether you are collaborators in the US government’s efforts to“collect it all” – our every move on the internet – or whether you, too, are victims of its overreach.

Every company named in Edward Snowden‘s revelations has said that it must comply with government demands, including requirements to keep secret court orders secret. True enough. But there’s only so long they can hide behind that cloak before making it clear whether they are resisting government’s demands or aiding in them. And now, the time has come to go farther: to use both technology and political capital to actively protect the public’s privacy. Who will do that?

Surveillance quote of the day

Jeff Rosen has a very persuasive – and very damning – analysis of the Obama administration’s legal defenses of its NSA spying. They make Bill Clinton look straightforward and honest. They even come close to Bush-style newspeak in their interpretation of the word “relevance”.

I must say that as the scrutiny increases – and Jeffrey’s piece is an overview of the administration’s own August 9 White Paper – I find my own ambivalence shifting to opposition to these programs. I don’t regard this as an abstract ideological issue. I see it as a tough cost-benefit analysis: do the counter-terror advantages of mass surveillance outweigh the damage done to our privacy and freedom? I’ve been listening to this debate carefully – and it seems to me that the anti-NSA arguments are increasingly convincing. These practices need to be reined in – or the law needs to be changed to make the over-reach explicit. And somehow I don’t think there’s a majority for the latter.

Andrew Sullivan

Encryption is not illegal but secret “laws” should be illegal (updated)

I have been looking for a reliable and secure email service for several months. I had focused in on Lavabit as a good provider.  It offered end-to-end encryption and was quite affordable.

Today, however, Lavabit’s founder announced its immediate closure.  Here is the full message from Lavabit:

My Fellow Users,

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on–the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

Sincerely,
Ladar Levison
Owner and Operator, Lavabit LLC

Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here.

The United States government is clearly behind this shutdown. Presumably, there has been a demand that Lavabit release private information to the government, which the owner will not do.   Two points:

  1. The US government has no right to secretly demand that encrypted communications must be revealed and that the provider of such services is precluded from describing the nature of the government demands regarding the same.
  2. The continued and extensive violations of the fourth amendment and Americans’ privacy must stop. Now.

When does the abuse stop.  How long before it is illegal to whisper to a friend or fail to smile at security cameras.

Silent Circle has also shuttered it’s secure email operation.

Update:  The EFF has issued a statement condemning the continuing assault on encrypted commucations:

Lavabit’s ominous note and the lack of information about this case is especially concerning for users of large communication service providers like Facebook and Google that may well have been subject to similar pressure, and we hope they will continue to fight for the user in the face of government demands, even if not recognized for years. Already, Lavabit’s note has led to Silent Circle dropping its email service, saying “We see the writing [on] the wall, and we have decided that it is best for us to shut down Silent Mail now. We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.”

Moving forward, we need more transparency so the public can know and understand what led to a ten-year-old business closing its doors and a new start-up abandoning a business opportunity. Hopefully Congress will get concerned, especially when there are American jobs at stake.

Lavabit’s post indicates that there was a gag order, and that there is an ongoing appeal before the Fourth Circuit. We call on the government and the courts to unseal enough of the docket to allow, at a minimum, the public to know the legal authority asserted, both for the gag and the substance, and give Lavabit the breathing room to participate in the vibrant and critical public debates on the extent of email privacy in an age of warrantless bulk surveillance by the NSA.

Related articles

Members of Congress denied access to NSA information

All members of Congress are entitled to vote on all bills, even those that relate to the NSA’s massive domestic and international spying programs. But not all members of Congress can receive information necessary to make a thoughtful vote. You can read the details at The Guardian here.

Excerpt:

Members of Congress have been repeatedly thwarted when attempting to learn basic information about the National Security Agency (NSA) and the secret FISA court which authorizes its activities, documents provided by two House members demonstrate.

From the beginning of the NSA controversy, the agency’s defenders have insisted that Congress is aware of the disclosed programs and exercises robust supervision over them. “These programs are subject to congressional oversight and congressional reauthorization and congressional debate,” President Obama said the day after the first story on NSA bulk collection of phone records was published in this space. “And if there are members of Congress who feel differently, then they should speak up.”

But members of Congress, including those in Obama’s party, have flatly denied knowing about them. On MSNBC on Wednesday night, Sen. Richard Blumenthal (D-Ct) was asked by host Chris Hayes: “How much are you learning about what the government that you are charged with overseeing and holding accountable is doing from the newspaper and how much of this do you know?” The Senator’s reply:

“The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me.”

But it is not merely that members of Congress are unaware of the very existence of these programs, let alone their capabilities. Beyond that, members who seek out basic information – including about NSA programs they are required to vote on and FISA court (FISC) rulings on the legality of those programs – find that they are unable to obtain it.

The President claims that the NSA is subject to strict Congressional oversight. But how can Congress (including members not on the Intelligence Committees who are in the pockets of the defense-surveillance industry) conduct oversight when their questions and requests for information go unanswered?

Secret laws continue to propagate in the US

Seal of the United States Department of Justice
Seal of the United States Department of Justice (Photo credit: Wikipedia)

The Department of Justice is seeking to keep secret a memo written by the Office of Legal Counsel which claims that the FBI can request records from telecommunications companies without issuing national security letters or warrants in advance. In other words, the DOJ claims a right to side-step both the warrant and NSL process based on a memo which is not public. In effect, the DOJ is relying on secret law, which is among the techniques of repressive, totalitarian regimes. It is simply wrong to continue to create such secret laws in a democratic country supposedly governed by the rule of law.

They do this notwithstanding a redacted a DOJ Office of Inspector General report questioning the legality of such information requests. Check out page two of the text of the report. You can read chapter and verse of this action which is being challenged by the EFF.

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.

Executive power grab

From an editorial in today’s New York Times:

On one level, there were not too many surprises in the newly disclosed “white paper” offering a legal reasoning behind the claim that President Obama has the power to order the killing of American citizens who are believed to be part of Al Qaeda. We knew Mr. Obama and his lawyers believed he has that power under the Constitution and federal law. We also knew that he utterly rejects the idea that Congress or the courts have any right to review such a decision in advance, or even after the fact.

Still, it was disturbing to see the twisted logic of the administration’s lawyers laid out in black and white. It had the air of a legal justification written after the fact for a policy decision that had already been made, and it brought back unwelcome memories of memos written for President George W. Bush to justify illegal wiretapping, indefinite detention, kidnapping, abuse and torture.

The power of our Constitution is driven, in major part, by the separation of powers. The claim that a US President can unilaterally order the killing of an American citizen with no judicial oversight before or after the killing should be anathema to our citizens.

Fortunately, the ACLU continues to pursue a case through the courts to open the executive decision-making process and secure judicial review of this killing program.

“Under our constitutional system, the right to life is not entrusted to the Executive alone,” Hina Shamsi, director of the ACLU’s national security project, said in the court papers filed Tuesday night in Washington. The ACLU and the Center for Constitutional Rights represent the personal representatives of the estates of the U.S. citizens, including Anwar al-Awlaki, in the case.

The killing of Awlaki, a Muslim cleric whom the U.S. government officially designated a “global terrorist,” occurred in 2011 outside of any battlefield, the ACLU lawyers said. Targeting Awlaki, the plaintiffs said in their papers, was unlawful because he wasn’t “engaged in activities that presented a concrete, specific, and imminent threat of death or serious physical injury.”

The application of the so-called “political question doctrine,” in which the judiciary refrains from wading into the political realm, should be narrowly construed, the ACLU said. The challengers said the claims in the suit, brought under the Fourth and Fifth Amendments, “could not be more squarely committed to the judiciary.”

For a good summary of thoughtful reactions to the Administration’s policy, check out this from Andrew Sullivan.

DOJ white paper on killing citizens without trial leaks

NBC has revealed a 16-page leaked memo, unsigned and undated, that describes the analysis used by the US Government to support killing US ctizens without trial.

Here is a brief summary from the New York Times:

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

It also fills in many blanks in a series of speeches by members of the Obama legal team about the use of force in targeted killings, including remarks by Attorney General Eric H. Holder Jr. at Northwestern’s law school in March. He asserted that the Constitution’s guarantee of “due process” before the government takes a life does not necessarily mean “judicial process” in national security situations, but offered little specific legal analysis.

And here is a preliminary take from the ACLU.

Of course, there is no way that this is legal. The damage done to the Constitution that began in the Bush Administration continues under the supervision of a Constitutional lawyer.

Due process quote of the day

President Obama has refused to tell Congress or the American people why he believes the Constitution gives, or fails to deny, him the authority to secretly target and kill American citizens who he suspects are involved in terrorist activities overseas. So far he has killed three that we know of.

Presidents had never before, to our knowledge, targeted specific Americans for military strikes. There are no court decisions that tell us if he is acting lawfully. Mr. Obama tells us not to worry, though, because his lawyers say it is fine, because experts guide the decisions and because his advisers have set up a careful process to help him decide whom he should kill.

He must think we should be relieved.

Vicki Divoll, former general counsel to the Senate Select Committee on Intelligence and former deputy legal adviser to the C.I.A.’s Counterterrorism Center, calling on President Obama to release his legal justification for killing American citizens without a trial.

Civil liberties quote of the day

There’s nothing like a debate over warrantless wiretapping to clarify how the two parties really feel about government. On Friday, the Senate voted to reauthorize the government’s warrantless surveillance program, with hawkish Democrats joining with Republicans to block every effort to curtail the government’s sweeping spying powers.

As the Senate debated the renewal of the government’s warrantless wiretapping powers on Thursday, Republicans who have accused President Barack Obama of covering up his involvement in the death of an American ambassador urged that his administration be given sweeping spying powers. Democrats who accused George W. Bush of shredding the Constitution with warrantless wiretapping four years ago sung a different tune this week, with the administration itself quietly urging passage of the surveillance bill with no changes, and Senator Dianne Feinstein (D-Calif.) accusing her Democratic colleagues of not understanding the threat of terrorism.

“There is a view by some that this country no longer needs to fear an attack,” Feinstein said.

Adam Serwer, writing in Mother Jones.

If you are interested, here is the floor statement by Senator Ron Wyden who argues for reasonable limitations on the powers of the bill, and a transparent discussion of how the bill is actually being implemented.