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Section 702 Reform: Actions For Thanksgiving Week

Congress is debating whether to renew the law that allows the FBI and other agencies to conduct warrantless searches on Americans’ communications, Title VII of the FISA Amendments Act of 2008. Too much of the approach so far by most legislators has been to try to find the sweet spot of being able to say to the public that they have passed a “reform”, without actually offending the intelligence community by meaningfully limiting the surveillance that is being done.

This week, the ask is as follows, and works for Representatives and for Senators. The fuller explanation is in “Legislative Analysis” below.

– Cosponsor the USA RIGHTS Act
– Oppose the FISA Amendments Reauthorization Act
– Oppose the inclusion of any 702 reauthorization provisions in an end-of-year omnibus spending bill

For the USA Liberty Act, the main action is in the Senate. When you call your Senators, please ask them to:

  • Senators should cosponsor the Senate USA Liberty Act; and
  • Make sure that the language on FBI backdoor searches continues to reflect the Senate bill as introduced, rather than adopting the House language; and
  • Support any amendments that restrict use of 702 information to topics generally covered by the known certificates for it: terrorists, spies, proliferation, nation-state hacking, and other critical infrastructure issues, as the House USA Liberty Act does; and
  • Support any amendments that restrict unmasking in the manner that the House USA Liberty Act does; and
  • Encourage the adoption into the Senate USA Liberty Act of other elements of the excellent USA RIGHTS Act.

Scroll down for detailed legislative analysis and commentary.


Legislative Analysis

Section 702, the most controversial part of Title VII of the FISA Amendments Act (“FAA”) of 2008, is due to sunset December 31, 2017. Unless Congress acts in some way, this legislative authority for the NSA’s mass surveillance programs, including PRISM and UPSTREAM, will expire.

Digital Fourth’s primary position on this is: Good. FAA was a cowardly, retroactive Congressional capitulation to a Bush administration which had been caught conducting unconstitutional and illegal mass surveillance. By rights, the people responsible for authorizing it ought to have been jailed, and the databases arising from it should have been destroyed. Meaningful personal penalties for those involved in these abuses, like with torture, could have made it less likely to happen again. Since Title VII of FAA last came up for reauthorization at the end of 2012, the Snowden revelations have uncovered arrays of new information about how badly the intelligence community is abusing its powers, and how much they have lied to Congress and the public about what they have been doing in the name of “safety.”

However, we recognize that the Trump administration and about one-third of Congress would nevertheless like to see these powers renewed permanently and without reforms, out of desperation to portray themselves as tough on terror. Despite our best efforts, there are nothing near the numbers there should be in Congress willing to see these powers sunset altogether.

The best legislative fix available to Congress, the USA RIGHTS Act, was introduced by Sen. Rand Paul (R-KY) and Sen. Ron Wyden (D-OR) in the Senate, and Rep. Zoe Lofgren (D-CA) and Rep. Ted Poe (R-TX) in the House. It is the only thorough effort to fix the problems with Section 702 warrantless surveillance of Americans. The USA RIGHTS Act would not allow the FBI, or any other government agency, to query the database using search terms relating to a US person, without a warrant. It would protect whistleblowers, end “about” searches, allow more lawsuits to be brought challenging NSA surveillance, give the Privacy and Civil Liberties Oversight Board subpoena power, and shorten the next sunset period to four years. Given that the intelligence agencies and FBI have lied to the courts, to Congress and to us about what they’ve been up to, and given the Trump administration’s penchant for political persecution, USA RIGHTS looks to us, if anything, like a generous accommodation to the overmighty intelligence agencies.

What both House and Senate leadership would probably mostly prefer is an outcome where the Senate Intelligence Committee’s “FISA Amendments Reauthorization Act” (“FARA”) either passes as stand-alone legislation or gets folded into an omnibus spending bill, enabling Congressmembers to get home for Christmas and not come back till the New Year. The problem with this is that FARA is really, really awful. It provides a straightforward roadmap for the NSA to restart “about” collection. It offers an eight-year sunset date for these powers, versus four in the USA RIGHTS Act. The Attorney-General (Jeff Sessions, remember) is given unreviewable authority to allow searches of the NSA database for serious crimes and vaguely defined cybersecurity purposes. This is essentially a bid by a captured oversight body, the Senate Intelligence Committee, and its chairman Richard Burr, to give the intelligence community exactly what it wants; its improvements to reporting requirements by the Attorney-General and the FISC are there purely to be able to claim that “reform” has been accomplished.
Despite – or, more likely, because of – the awfulness of FARA, the prospect of its being folded into an omnibus, must-pass spending bill is a serious one.

Before Sens. Leahy and Lee introduced the Senate USA Liberty Act, it was not clear how it could realistically be avoided. Now, their stronger language on the warrant requirement gives us, as a Fourth Amendment nonprofit, something to fight for that has some chance of passage. We’re therefore encouraging both the USA RIGHTS Act as the best legislative vehicle, and a modified version of the Senate USA Liberty Act as the next-best legislative vehicle. The Senate USA Liberty Act should be modified because (a) it does not protect Tor users, numbering nearly half a million in the US on any given day; because (b) it does not limit the uses of 702 information to the previously established “certificates” for its use; and because (c) it does not require transparency into “unmaskings” ordered by the White House.

Commentary: A Note on Good Faith

Commentators frequently bemoan the decline in America over the last few decades in trust in institutions and in one another. As an organization drawing support from people on the right, on the left, and many places in between, we serve as a rare space where Americans can still work together towards common goals, even when coming from very different positions on political and social issues. We deeply value and cultivate that sense of trust in one another. It’s genuinely important to believe that the vast majority of our fellow Americans come by the beliefs they have no less honestly than we come by our own, and that they honestly believe that their views, if implemented, would make the country a better place. Without that bedrock of mutual trust, we would be able to achieve nothing.

Trust in institutions, however, is a very different and much more difficult thing. In truth, the last fifteen years have given Americans plenty of good reason to distrust their institutions. Our political elites manipulated people’s grief and anger over September 11th to bring us into a highly profitable state of unending war. They crashed the economy, left the people who crashed it unpunished, and made the rest of us pay for their ineptitude. It often seems the case that the two major parties agree with one another most easily when there is a project afoot that will really screw the public. And sadly, the governmental institutions with the highest remaining general levels of trust – the military and the police – also don’t really deserve it. It has now been three generations since the military went to war to “protect our freedoms”; their deployments typically aim at shoring up an empire the world doesn’t particularly want, and from which the Founders would back away in horror. The police shoot too many innocent, disproportionately black Americans, routinely violate people’s rights, and almost never face accountability for doing so. The trust that has been squandered will not return by itself, and will certainly not return while elites flaunt their self-exemption from the increasingly harsh state surveillance and punishments the rest of us are subject to.

When it comes to the laws constraining surveillance by the US government’s many intelligence agencies, the problem of trust becomes especially acute. Intelligence professionals cannot reveal absolutely everything about what they do in real time; some secrecy is inherent to espionage. However, giving them a free hand in what they do leads to growing constraints on our ability to think, speak, move and associate without being monitored by the state’s ever-more-intrusive eyes. We are asked constantly to trust that whatever they are doing is in our interests, and will thwart terrorism; but our only safeguards that this is true are the asseverations of most of the few members of Congress “read into” these programs. We have a right to know what kinds of surveillance are being conducted in our name, but Congressional leaders haven’t exactly been forthcoming about it. In practice, we only have the tools now to evaluate these programs because of what Snowden and his fellow whistleblowers did. We are all, like worshipers in the early days of Protestantism, becoming suddenly much more literate in the ways the government exercises power over us, but we are hardly given a real choice over whether they do surveil us or not. So, the previous situation of blind trust in Congress to keep watch over the spies will no longer do. In reality, Congress seems to mostly have very little grasp of what’s happening, or if Congressmembers do understand it, they keep that knowledge to themselves, out of a sense that actually doing something about it only has political downsides for them.

We must therefore argue against making policy on the basis of an assumption, conscious or unconscious, that either Congress or the intelligence community are operating in good faith. In the legal and regulatory spheres, as opposed to the political, always presuming good faith cripples effectiveness; if we could always presume good faith, no law or regulation would even be needed. The legislators who created Section 702 may possibly have believed that the spies would be constrained by it, to not continue spying on Americans; now, in 2017, that belief is no longer reasonable, if it ever was. We now know the spies wordsmithed their way around 702 and created the mass surveillance programs they wanted anyway, including PRISM and UPSTREAM. Now, we must tackle the challenge of instituting reforms when the agencies being reformed are both highly influential in the process and really, really not working in good faith. The fact that legislation continues to be proposed and supported by leadership that presumes good faith on the part of the intelligence community, suggests a Congress so captured that it cannot be said to be really in charge of the intelligence community at all.

Call Your Rep: MA House Republicans Try To Pass Wiretap Expansion The Senate Rejected

As we suspected, there’s yet another attempt to expand the wiretap law. Even though the Senate, when they passed the criminal justice reform bill, voted 14-22 against expanding the wiretap law, that isn’t stopping law enforcement trying again via the House version. Minority Leader Rep. Bradley Jones has introduced three amendments expanding the wiretap law to the House version of the criminal justice reform bill (H. 4011) which is being debated today, tomorrow and Wednesday. These amendments are #53, #115 and #174. Please call your Rep before Nov. 15 and let them know that they should vote against all three of these amendments.

Since Digital Fourth began in 2012, we have advocated that warrant-authorized wiretaps should be treated as an extraordinary, not an ordinary, instrument for law enforcement; that they should be reserved only for the most serious of crimes; and they should not, as these amendments do, be expanded to cover a vast array of ordinary criminal investigations. Amendments #53 is especially pernicious, in mandating technical assistance by tech firms to break their encryption to assist law enforcement; #53 and #174 both also expand wiretaps to cover interceptions enabled by “pen register” orders; this could greatly expand ordinary people’s vulnerability to surveillance just by communicating with someone whose communications are considered relevant to a crime.

Amendment #53 expands the wiretap provisions to cover electronic methods of surveillance in addition to recording phone calls or wearing a physical wire. Wiretaps may be conducted of people not located in Massachusetts. The definition of what is a “wire communication” is greatly expanded to cover the whole panoply of modern communications, excepting tone-only pagers, GPS trackers, and electronic funds transfer information. The definition of an “interception” is expanded to cover the kinds of interception enabled by a “pen register” order, for which a showing of reasonable suspicion or probable cause is not required, and which covers the interception of location and header metadata. The definition of “contents” is clarified. The “designated offenses” for which you can conduct a wiretap are greatly expanded. Police body-worn cameras are excluded from needing a wiretap warrant. The default length of a wiretap warrant authorization is lengthened from 30 to 40 days. Some useful precision is added to how a warrant should be issued, requiring that it identifies the issuing agency, that the warrant be executed as soon as is practicable. that it must minimize incidentally collected information, and that it must end at the end of the investigation. Warrant renewals are extended from 15 to 30 days; the maximum time a warrant can run is extended from one year to two. Warrants can now be executed by contractors reporting to law enforcement instead of only by law enforcement officers designated by the applicant for the warrant. Last, the amendment requires tech firms to break their encryption if necessary in order to assist law enforcement in the execution of a warrant, rendering all of our communications more insecure.

Amendment #115 is narrower; it amends the preamble to indicate a general expectation that law enforcement can use “modern methods of electronic surveillance” and greatly expands the designated offenses to the same list as Amendment #53.

Amendment #174 is almost identical to Amendment #53, though it excludes the “technical assistance” provision.

Turn Out & Testify: Cambridge Public Safety Committee Public Hearing, 10/18, 6:30pm

Do you think the Cambridge Police Department should obtain invasive surveillance equipment like drones and facial recognition technology, in secret? We don’t.

That’s why we, along with the ACLU of Massachusetts and other allies, are working to pass a local ordinance in Cambridge to require a transparent and democratic process before police can purchase new surveillance equipment. Community input and transparency are critical to ensure new technologies don’t get out ahead of our constitutional rights.

Join us on Wednesday, October 18 at Cambridge City Hall at 6:30pm for the Public Safety Committee Hearing, to learn about the ordinance and raise your voice in support of these commonsense protections.

As Cambridge residents, it’s important to be informed and engaged in the conversation about what Cambridge police are doing, and why. Hope to see you there!

Turn Out & Testify Tuesday Oct 10 To Keep Weapons Of War Off Our Streets: Statehouse Room B-2, 10am


In Massachusetts, towns like Haverhill, New Bedford and tiny Rehoboth have recently acquired mine-resistant military assault vehicles for just the cost of shipping from the federal government; police in Palmer, MA have acquired a camera reconnaissance system designed to detect minefields; and Boston police deployed stingrays and a drone, all without the community’s review or consent.

We need as many people as possible to turn out and testify Tuesday at 10am at the State House, for the Legislature’s Joint Committee on Public Safety and Homeland Security’s hearing. Bills up for consideration include a Digital Fourth bill, H. 2503 (https://malegislature.gov/Bills/190/H2503), and an ACLU-sponsored bill, S. 1277 (https://malegislature.gov/Bills/190/S1277). Both our bill and the ACLU’s would require a public hearing and a vote by the elected officials of a Massachusetts town or city before the police acquire or deploy military-style equipment. Our bill would also include surveillance equipment of various kinds, including stingrays and drones; ACLU’s bill covers the state police and law enforcement councils, and ours does not. Both have merit.

With the Trump Administration’s reinstatement of the Pentagon’s controversial 1033 program that has flooded local law enforcement agencies with surplus military equipment, it is more important than ever that Massachusetts take a stand to control to stem the flow of battlefield ordnance into our cities and towns; especially as new research reveals a strong link between 1033 transfers to local law enforcement agencies and increased instances of officer-involved shootings (http://journals.sagepub.com/doi/full/10.1177/2053168017712885)

Whether you can come or not, please circulate this alert widely to other groups and listservs.
Hearing location: Currently room B-2. You’ll find the hearing room much more easily if you come to the entrance on Bowdoin St., round the side of the State House, not the Hooker Entrance at the front on Beacon Street.
Details of all bills up for consideration: https://malegislature.gov/Events/Hearings/Detail/2767\
For those who use it, we also have a Facebook page up to rally people to come: https://www.facebook.com/events/505668729766313/.

This effort is also supported by:
Black Lives Matter – Boston
Black Lives Matter – Cambridge
Jewish Voices for Peace – Boston
Massachusetts Pirate Party

Surveillance in the Age of Trump: Fighting Back in Cambridge, Somerville & Brookline

Come and be a part of our campaign to pass surveillance oversight ordinances in Massachusetts cities and towns!

On Thursday, June 15 at 6pm, local activists and city officials will be talking about ordinances to roll back the surveillance state. The ordinances would require local police to go through an open, democratic approval process before purchasing new surveillance equipment, and require the cops to report to elected officials about how they use surveillance technologies. Basic accountability at the local level is a critical step towards defending and expanding democracy in Cambridge, Somerville, and beyond.

At the event you’ll learn more about why we need the ordinance, the process at the local government level, and how you can get involved.

The event is co-sponsored by the ACLU of Massachusetts.

Details
Thursday, June 15, 2017
6:00PM-8:30PM
Cambridge Public Library
Central Square Branch
45 Pearl St, Cambridge, MA

We ask, but don’t require, that you RSVP, so we know how much pizza to order!

This event is free and open to the public.

Stingrays, Drones & Asset Forfeitures: Judiciary Hearing Monday June 5

If you have time Monday afternoon, and want to strike a blow for freedom, why not drop by Hearing Rooms A-1 and A-2 at the Massachusetts State House, and testify on one of three surveillance-related bills?

While the hearing starts at 1pm, there are so many bills on the agenda that it is likely to run to around 11pm. We don’t yet know when our bills will come up for public testimony, but a good guess would be any time from 2pm onward, with later being more likely. The practice of the Judiciary Committee is to “cluster” testimony on different topics, and to take first the bills that are likely to draw bigger crowds.

If you don’t have time for an open-ended commitment Monday afternoon/evening, please consider sending written testimony to the Senate Chair’s chief of staff at AnneJohnson.Landry@masenate.gov.

How Massachusetts’ Congressmembers Stack Up On Mass Surveillance

303_nsa_congress_cartoon

At this point in the election cycle, 99% of the oxygen in the room is taken up by the presidential campaigns. But Massachusetts has nine House members and two Senators, and their views on mass surveillance matter. Next year, the main authority for the government’s mass surveillance programs, Section 702 of the FISA Amendments Act of 2008, expires, and Congress will crucially shape what comes next. This pair of articles from Just Security give you an idea of what’s at stake:

Unprecedented and Unlawful: The NSA’s “Upstream” Surveillance
Correcting the Record on Section 702: A Prerequisite for Meaningful Surveillance Reform

The Democrats have a lock on the congressional delegation, but this is an issue where elected officials within the same party often differ sharply; so without further ado, here’s where they stand: (For the full list for all states, check out Decide The Future, our scorecard site.)

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Big Brother Is Not Fit To Hold My Data

wonka
[By Tamarleigh Grenfell]

Let’s say my brother and I are out on the town. He insists on holding my purse for me while I use the restroom, but then leaves my purse sitting in plain sight right on the bar, and some creep steals it. Should I trust my brother with my purse, ever again?

The U.S. Office of Personnel Management (OPM) sent me a letter this month informing me that my personal information was stolen in a “malicious cyber intrusion” earlier this year. My personal data (such as my SSN, name, address, date of birth, place of birth, residency history, employment history, educational history, personal foreign travel history, immediate family members, business acquaintances, personal acquaintances, medical history, criminal history, financial history, and more!) is all now somewhere out there in cyberspace, and like extinction and herpes, the Internet is forever.

This leak alone affected 21.5 million people, including 5.6 million people’s fingerprints,including mine. I provided that information, and my fingerprints, to the federal government long ago when I applied for a job as a research assistant at the Smithsonian Astrophysical Observatory. What started as an actual folder, somewhere along the line, got connected to Skynet – sorry, the Internet, and my fingerprints, which I can never change, were digitized and uploaded along with everything else.

What if I had found my brother two years ago photocopying my diary and circulating it to his friends for laughs, and that when confronted he just muttered something about it being to “keep me safe” because “there are dangerous people out there”? What if he then went out on the street with a bullhorn, telling everyone who will listen that we need to give him special keys to unlock all their stuff, because if we don’t, the Terrorists Will Win? What if he decided all on his own to break every lock in town, so he could access any document at any time? How much should I trust him then?

Read More →

The Year In Mass Surveillance

(Crossposted at The Dig)

SURVEILLANCE TOP

I run a sturdy volunteer group of cypherpunks, Democrats, libertarians, Republicans, and anarchists that meets weekly in Cambridge to plot ways to undermine the surveillance state. You’d be better off using divination sticks than relying on TV to find out what’s going on regarding these matters, so we keep track of it all. Here’s a brief overview of this year’s surveillance-related news in the Commonwealth.

In Massachusetts, we now have no fewer than 65 agencies focusing on homeland security and terrorism. Our local surveillance center (BRIC) operates out of Boston Police Department headquarters, and keeps tabs on Black Lives Matter, peace activists, local Muslim groups, and journalists and activists who oppose their tactics. Along with the FBI, BRIC monitors social media, especially around public events, for inappropriate content. Generally, these technologies and practices are focused sharply on poor and high-minority communities, leaving wealthier and whiter communities to enjoy a less intrusive style of surveillance. One exception to that would be Automatic License Plate Readers (ALPRs), which DigBoston discovered are still being used by BPD despite the department claiming years ago that they stopped tracking drivers en masse. Furthermore, until said Dig discovery, troves of the data collected via ALPR—more than a million license plate numbers tied to location and other information including home addresses in some cases—were left exposed online by the third-party company contracted to store plate information.

Knowing these facts, we advocated for bills this year on Beacon Hill to undermine police militarization (H. 2169) and mandate data collection on police stops and bodycams for all police statewide. along with strong privacy controls (H. 2170), and for Senate Majority Leader Harriette Chandler’s fusion center reform bill (S.734) which, among other things, would make it so “no state or local law enforcement agency, prosecutorial office, criminal intelligence system, police or peace officer, or agent thereof [could] track, collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership or other entity unless such information directly relates to an investigation of criminal activities.”

On the ground, activists Segun Idowu, Shekia Scott, and Muska Nassery worked throughout the year to bring bodycams to Boston, an idea which Commissioner William Evans greeted with all the enthusiasm of a vegetarian asked to model Lady Gaga’s meat dress. This while activists pried loose proof that BPD lied about not having a “stingray,” a device that spoofs cellphone towers and sucks up call data, likely mostly used in drug investigations. BRIC tarred journalists from the Bay State Examiner as security threats, lied when asked whether they had files on those journalists, steadily refused to meet with civil liberties groups, and awarded themselves an A+ for “Privacy, Civil Rights and Civil Liberties” in their annual DHS report. Of course, we’d know none of this without the Commonwealth’s battered old public records law, which the legislature is currently trying to update so that agencies like BRIC have longer to respond to requests.

At year’s end, the Paris attacks, the San Bernardino mass shooting, and GOP presidential candidate Donald Trump’s call for unreasonable immigration restrictions have everyone on edge, but especially the Muslim community. There are swastikas on mosques and hit pieces in the press on local Muslims and those who defend their rights. The pressure of surveillance makes everything worse, accentuating suspicion across classes, religions, and races—all without doing anything to actually thwart attacks.

In consequence of all this, black, Jewish, LGBT, anarchist, progressive, and Somali groups came together with the ACLU to hold a standing-room-only session in Roxbury on surveillance, race, and policing. Meanwhile, BPD officials, including a representative from BRIC, hold meetings with local Muslim leaders at their headquarters, and wonder why attendance is below expectations.

If you’d like to join our efforts in 2016, we recommend you use Tor, Signal, and Protonmail to protect your communications, and join our listserv at d4-discuss-subscribe@lists.riseup.net.

BONUS: For months, the Boston Institute for Nonprofit Journalism, along with many of their followers on social media, have been documenting surveillance around Greater Boston to make up for the fact that there is no master list of all camera locations. We need your help! All you have to do is snap a picture of a camera on your cell phone and post it on Twitter or Instagram with the hashtag #BINJbrother. If you’re a surveillance skeptic and don’t want to use your GPS for location, please just tag the city (e.g., #Boston) and building (e.g., #MGH) or intersection (e.g., #MassAve and #Boylston). Try not to mess up, you’re being watched. -Chris Faraone

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