Tag: usa freedom act

Congress, Don’t You Dare Revive The PATRIOT Act

usam-e1415383995341

In the runup to last night’s sunset of three PATRIOT Act authorities, TV-watchers were barraged with lurid threats of “horrific terrorist attacks and violence” that would be our lot if we dared to let go of any of them. And then the authorities did sunset, and we all woke up this morning, still alive, and mysteriously unmassacred.

Look around you. What you see outside is that apocalypse’s first day, and … we’re OK. A small part of the surveillance state has stopped collecting new data. In the full daylight, cops are still stopping suspects. In the shadows, PRISM collection continues, unreformed. But this morning proves that Section 215 was never needed. The dragnets enabled under it didn’t do a blind bit of good.

This is hard to swallow, but it’s true. There never was, on this topic, any “tradeoff between privacy and security”. There never was any well-intentioned desire to Keep Us Safe™. The NSA felt able to launch mass metadata dragnets, and they did. That’s it. No-one really bothered analyzing whether the dragnets really worked. It wasn’t about effectiveness, or about safety. It was about fostering a culture of submission to authority.

In the same way, more locally, for twenty years and more, the NYPD wasted millions of dollars in staff time, conducting suspicionless “stop and frisks” of millions of people who had done nothing wrong. When questioned, they argued that without stop and frisk, lawlessness would run rampant. And then, when they were forced to stop last year, what happened? Crime fell.

In the same way, after 9/11, we took the Fourth Amendment, and broke it. We chose to torture people, run secret prisons, and launch illegal wars, all, again, to Keep Us Safe. It was, and is, for nothing. The bombs we dropped, the pain we caused, the lives we took, were all in vain.

We should be under no illusions now. The claim that Section 215 was needed, like the claim that the Iraq War was needed, were always nonsense. In all likelihood, the claims we need the other mass surveillance systems are nonsense too. Don’t go telling us that we can’t do without, say, mass internet surveillance under Section 702 of the FISA Amendments Act, or without full take of entire countries’ audio and Internet communications under Executive Order 12,333. We’ve done without such things before. We can do without them again. We gain no safety from submission, and it should not have taken fourteen years to learn that lesson, stop submitting and start standing up straight again.

Here’s the bad news. Not only the sunset happened last night. The Senate also voted for cloture on the USA FREEDOM Act, which would put these three expired provisions back into law, by a margin of 77 to 17. On Tuesday, they’ll vote on the bill itself, and it looks likely, based on the cloture vote, to pass. Even if there are no amendments, the President will sign it. So on the third day after sunset, Section 215 will rise again, like a new-bitten zombie, and start looking for prey. Undead Section 215 will be a little different – for example, instead of holding the dragnet data itself, the NSA will pay Internet and phone companies to hold onto it, and it’s likely that when it passes it will allow the NSA to instruct companies to format the data in such a way that the NSA can query it almost frictionlessly. Permanent sunset will mean the NSA actually has to collect less, and that’s so unimaginable to Senators – well, to all but a very few Senators – that they are racing to restore the lapsed parts of the PATRIOT Act and deprive you and me once again of the liberties we have so improbably won back.

So I say to our more servile Senators: Don’t you dare restore the PATRIOT Act. You aren’t here above all to Keep Us Safe™; you’re here above all to protect the Constitution. Endorsing the USA FREEDOM Act breaks that oath. Look at the side the fearmongers have taken, and the profits they stand to make, and vote the other way. Vote No on the USA FREEDOM Act tomorrow, and then let’s discuss, deeply, seriously, openly and fearlessly, what kinds of surveillance the Constitution will allow. The American people are ready to breathe more freely and live their lives less watched. It’s time to move forward.

Most Reps Voting for USA FREEDOM Were Opponents of Surveillance Reform

ackbar-trap-usaf

The House just voted to pass the USA FREEDOM Act, which reauthorizes and alters Section 215 of the PATRIOT Act, with a vote of 338 to 88. It’s being depicted as a landslide in favor of reform. It is, sadly, anything but. This is why.

Last week’s ruling by the 2nd Circuit fundamentally changed the Congressional debate. Senator McConnell, the Majority Leader, had been pushing for a straight reauthorization of Section 215 of the PATRIOT Act. But the 2nd Circuit ruling said, among much else, that if Congress did a straight reauthorization of the same language, then their ruling that mass metadata surveillance was unlawful would still stand. In other words, straight reauthorization will no longer get surveillance defenders what they want. So, as the next best thing, the administration and the intelligence committees swung behind the USA FREEDOM Act. This Act would impose token limits on how much they can collect with a single request, but would modernize intelligence collection for a world where much communication is not an actual phone call. As a compromise between moderate surveillance reformers and the intelligence community, it actually offers a lot that the intelligence community likes. So it looks much better to them at this point than straight reauthorization (=no mass metadata surveillance under Section 215) or straight sunset (=no mass metadata surveillance under Section 215).

How do we know this happened? We can measure it.

Continue reading Most Reps Voting for USA FREEDOM Were Opponents of Surveillance Reform

The NSA Is Not Above The Law

tr-above-the-law

[Crossposted at Restore The Fourth]

Last Thursday’s 2nd Circuit Court of Appeals ruling in ACLU v. Clapper threw a bomb into the middle of the debate over renewing the legal authority governing the NSA’s mass metadata surveillance programs. In a unanimous ruling, the Justices held that such programs, untethered to the limiting factor of what is relevant to a specific investigation, were never authorized under Section 215 of the PATRIOT Act.

Bob Litt, the general counsel of the Office of the Director of National Intelligence, scrambled to respond, arguing at a panel on transparency in DC on May 8 that the ruling is not binding on the FISC, that it is not currently in effect, and that it will be overturned soon anyway. Senate Intelligence Committee Chairman Richard Burr (R-NC), who vehemently supports mass NSA surveillance, is contending that “I think the statutory language today allows the NSA to do exactly what they’re doing […] I have a very tough time thinking the Supreme Court would look at this law […] and come to the conclusion that we didn’t empower the NSA to do bulk collection.” In the same article, Stewart Baker, the former general counsel for the NSA, is reported as deriding the ruling as a “97-page law review article” whose “significance is close to zero.”

Collectively, these assertions are the public face of what’s nothing less than a desperate effort by the NSA to declare itself literally above the law. But let’s take them one at a time, shall we?

Continue reading The NSA Is Not Above The Law

Sharing Is Not Caring: Amtrak, DHS and Travelers’ Rights

Sample form for internal passport for prisoners of war, Geneva Conventions, 1956
Sample form for internal passport for prisoners of war, Geneva Conventions, 1956

Traveling in today’s America is becoming more and more constrained. Every year, there are more checks, more searches, and more guards. If you go by car, ALPR systems will track you. If you go by plane, you and your belongings can be legally searched, groped, mocked, impounded or vandalized. If you stay in a motel, your information may be shared up front with law enforcement. And now, even the trains are getting on the act.

The aptly-named PapersPlease.org filed a Freedom of Information Act request last October asking how Amtrak handled sharing of information with the Department of Homeland Security. While Amtrak is regularly subsidized, it is legally a private company, and as such should not share information on passengers unless the police provide them with a valid, individualized probable-cause warrant. You know, that old Fourth Amendment thing?

Ahem.

Continue reading Sharing Is Not Caring: Amtrak, DHS and Travelers’ Rights

Midterms & Mass Surveillance, Part II: CIA and Elite Torturers Win, The Rule of Law Loses

DilbertCorporateCulture2002

We lack in this country a major party that offers wholehearted and universal support for the protections embodied in the Bill of Rights, and the choices offered are often highly constrained. To take the last two presidential elections as an example, the more pro-civil-liberties of the major-party candidates has launched more Espionage Act prosecutions than all previous presidents combined; indefinitely detains legally innocent people, for fear of what they might do if released; allows agencies to gin up fake terror plots; calls the idea of actually prosecuting torturers “sanctimonious“; and would prefer a cosmetic surveillance reform that legitimates most of what the deep state is doing and that, of course, wouldn’t punish anyone. The less pro-civil-liberties candidates argued for unending war in the Middle East, invited warmongers and torturers to introduce them at campaign stops, and argued that affording due process to prisoners of war would be a kind of treason.

There’s a reason for this constrained choice set: The elites of both parties no longer, if they ever did, believe that laws apply to them, their colleagues, their funders, or the intelligence agencies. As a result of this culture of lawlessness, no candidate that genuinely seeks to have laws apply universally will garner the insider support needed to advance their candidacies.

We will see the effects of this constrained choice set in the new Congress most clearly in the field of prosecutions for US government acts of torture.

Let’s review the history.

Continue reading Midterms & Mass Surveillance, Part II: CIA and Elite Torturers Win, The Rule of Law Loses

Midterms & Mass Surveillance, Part I: End “Section 215” Mass Metadata Surveillance

The midterms saw defeat of several surveillance reformers in the Senate, notably Mark Begich and Mark Udall, and the arrival of ardent authoritarian Tom Cotton. But even had reformers won, electing surveillance reformers does not of itself make surveillance reform more likely. There are certain policy outcomes that are not permitted, and real surveillance reform is not permitted.

Here at Digital Fourth, we offer a more radical and more realistic perspective. What is not permitted has in the past included ending Jim Crow, ending legal discrimination against gay and lesbian people, and electing professed atheists to public office. The parameters of the not permitted can shift more abruptly than it’s possible to imagine ahead of time. Ending the mass surveillance state may be not permitted, but it can absolutely be done.

In a global sense, as even the Boston Globe has noticed, the actual opinions of the people have had no measurable effect on US national security and foreign policy. The party in charge may change, but the deep state remains in power, and the fundamental assumptions of American imperial management remain essentially the same.

Despite this, the change in control of the Senate has meaningful strategic implications for how surveillance activists should be pursuing the battle against mass surveillance over the next two years, both federally and at the state level. So, follow us below the fold for the first in our five-part analysis of next steps for the movement.

PART II: CIA and Elite Torturers Win, The Rule of Law Loses
PART III: Congress & Obama At Daggers Drawn – Except Where It Really Counts
PART IV: Surveillance Doesn’t Pay: The New Massachusetts Political Landscape
PART V: And I Have Seen Blue Skies
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Continue reading Midterms & Mass Surveillance, Part I: End “Section 215” Mass Metadata Surveillance

We Need Real Surveillance Reform, Not The House’s “USA Freedom Act”

shredded-constitution

Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.

The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”

That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance. The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.

Continue reading We Need Real Surveillance Reform, Not The House’s “USA Freedom Act”

Digital Fourth Secures 100% Support for NSA Reform By MA’s US Reps and Senators

The main substantive reform of the NSA proposed in Congress, the “USA FREEDOM Act”, would ban bulk surveillance, require a Special Advocate to plead the case against surveillance at the Foreign Intelligence Surveillance Court, and force the publication of secret laws governing how surveillance is conducted.

At Digital Fourth, we have campaigned ever since the law was introduced to get 100% of Massachusetts’ federal legislators – Representatives and Senators – to cosponsor this legislation. Last week, with the cosponsorship of Rep. Richard Neal in Western Massachusetts, we achieved our goal, becoming the only state (other than Alaska and Montana) where that is true.

Right now, the USA FREEDOM Act has 141 cosponsors in the House out of 218 needed, and 21 cosponsors in the Senate. Its cosponsors are almost equally divided between Democrats and Republicans, sending a message that no matter who occupies the White House, people of all political beliefs have a stake in preventing mass surveillance.

Continue reading Digital Fourth Secures 100% Support for NSA Reform By MA’s US Reps and Senators

The Day We Fought Back: Here’s what comes next

Photo credit: theintercept.org
Photo credit: theintercept.org

Yesterday, the Internet lit up in protest against mass surveillance. In the US, Congress got over 85,000 phone calls from people frustrated by mass surveillance, and urging their legislators to support the USA FREEDOM Act. Here in Massachusetts, we worked with the ACLU of Massachusetts to target the specific legislators who had not cosponsored. Our heartfelt thanks go out to Rep. Joseph Kennedy (MA-04) and Rep. Katherine Clark (MA-05), who cosponsored over the last week. Our puzzled and insistent glare turns to Rep. Niki Tsongas (MA-03), who has not cosponsored yet and is still considering the matter. The USA FREEDOM Act is currently listed at 134 cosponsors (though that doesn’t yet officially include Rep. Clark, and there may be, after yesterday, other “undeclared cosponsors”).

What’s next? Well, There is a real-deal NSA reform bill, that would repeal the infamous PATRIOT Act altogether, along with the FISA Amendments Act, forbid mandatory software backdoors, and give whistleblower protections to government contractors as well as employees. It’s called the Surveillance State Repeal Act. One of its nine cosponsors is none other than Rep. Richard Neal (MA-01), who has not yet cosponsored the USA FREEDOM Act either, it seems because it is not strong enough. We applaud his commitment, but would argue that it’s not an either-or – we’d love to see him cosponsor both. It’s great to see that two other Massachusetts legislators – Rep. James McGovern (MA-02) and Rep. John Tierney (MA-06) – are also among the nine cosponsors, putting Massachusetts at the forefront of efforts to restore freedom and the Fourth Amendment.

So let’s keep moving, and let’s encourage our legislators to cosponsor both of these good bills. And meanwhile, check out our awesome calendar (right) of surveillance-related events coming up in Massachusetts!

What Does The “USA Freedom Act” Really Say?

Photo credit: The Daily Dot
Photo credit: The Daily Dot

Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI), one of the original authors of the USA PATRIOT Act, jointly introduced an NSA reform bill on October 29. Rep. Sensenbrenner has clearly not lost any of his love of elaborate nationalistic acronyms in the intervening years, and named his bill the ‘Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act”, or “USA FREEDOM ACT”. For once, the content of a bill proposed in Congress may actually bear some relation to its title, in that it appears to be a sincere effort to rein in several of the worst abuses at the NSA.

However, what has not been clear in the reporting on the Act is the specifics of what the Act actually does. A quick look at the original text shows why. As one activist lamented, “Unfortunately, the text is exceptionally hard to read … It would be much easier to read if the full text was collated with the current statutes.” Indeed it would. Luckily, Digital Fourth is on hand to provide a more detailed guide to its (very densely written) contents than is presently available.

For those who want a high-level summary of the bill, the ACLU has provided one here. What follows is a low-level, section-by-section summary of how the bill changes current law. We welcome updates and corrections as we go forward.

Continue reading What Does The “USA Freedom Act” Really Say?