jeff merkley – Techdirt (original) (raw)

Bill Would Ban Broadband Shutoffs Until COVID-19 Pandemic Eases

from the going-nowhere-fast dept

A few weeks back, the Trump FCC put on a big show about a new “Keep America Connected Pledge.” In it, the FCC proudly proclaimed that it had gotten hundreds of ISPs to agree to not disconnect users who couldn’t pay for essential broadband service during a pandemic. The problem: the 60 day pledge was entirely voluntary, temporary, and because the FCC just got done obliterating its authority over ISPs at lobbyist behest (as part of its net neutrality repeal), it’s largely impossible to actually enforce.

Shockingly, numerous ISPs immediately proceeded to ignore that promise, and began kicking customers offline. Several ISPs even kicked disabled folks offline, despite repeatedly promising not to. And despite making a big stink about the pledge, the Ajit Pai FCC’s response to this was to do nothing. Not only has the FCC done nothing, it has tried to claim that the reason we’re seeing a surge in these complaints is somehow thanks to the FCC’s half-assed efforts on this front:

“Although we have received some disconnection complaints recently, we think it may reflect increased attention on the FCC’s work to keep people connected,” the spokesman said.”

That’s of course nonsense. ISPs were never going to adhere to a voluntary promise pushed by a feckless, captured FCC with no authority to punish them. A powerless FCC was their reward of the recent, scandal-plagued net neutrality repeal. It’s also worth noting that the FCC doesn’t track disconnection complaints, because, well, America.

Enter a new bill sponsored by Senators Ron Wyden, Bernie Sanders, and Jeff Merkley that would make it illegal to terminate the connections of broadband subscribers during the pandemic (barring instances of network abuse). From the announcement:

“Now?as millions of Americans hunker down, work from home, and engage in remote learning?would be the absolute worst time for Americans to lose a critical utility like internet service,? said Merkley. ?Oregonians and people across America deserve to know that as we weather the social and economic consequences of this storm together, they will still have be able to go to work, go to school, buy groceries, and stay connected to loved ones?all of which many depend on the internet to do. Congress should include this protection in the next coronavirus response bill.”

Of course the bill will never, ever pass thanks to a Senate slathered in telecom campaign contributions. But I guess it’s the thought that counts.

Filed Under: account shutoff, ajit pai, authority, bernie sanders, covid-19, fcc, jeff merkley, keep america connected, pandemic, ron wyden

Senators Pitch Temporary Facial Recognition Ban, Leave Door Wide Open For Abuse By Federal Agencies

from the take-another-pass-or-three-before-sending-this-out-for-a-vote-pls dept

Here’s a promising development on the facial recognition front — one that won’t make facial recognition tech developers very happy. Bans have been popping up around the nation but this legislative pitch would (sort of) prevent the federal government from deploying the tech.

On Wednesday, Senators Jeff Merkley (D-OR) and Cory Booker (D-NJ) introduced legislation to place a moratorium on the use of facial recognition by the federal government or with federal funds—unless Congress passed regulations for the technology.

The Ethical Use of Facial Recognition Act aims to create a 13 member congressional commission representing interested parties—including law enforcement, communities subjected to surveillance, and privacy experts.

It’s a temporary ban but it’s better than doing nothing about the federal government’s enthusiasm for unproven tech. The DHS has been pushing for this tech to be deployed everywhere travelers might board conveyances or cross borders. Federal law enforcement agencies are just as interested in using this tech despite its horrible track record, amassing large collections of facial pictures and granting access to just about any local agency expressing an interest in rolling the dice on biased software. Then there’s Clearview, which is its own monstrosity — one that implicates far more variables than government access.

Unfortunately, there’s a big exception carved out for law enforcement agencies, which would include DHS components assigned to borders and airports. The only thing keeping this bill from being completely useless is that the exception is tied to a warrant requirement, which means no more biometric scanning at international airports.

Or maybe it doesn’t. The bill [PDF] doesn’t specifically address the Constitutional no-man’s land that are our border crossings and international airports. So, it may be possible for law enforcement agencies working in these areas to abide by the partial ban while still ignoring the warrant requirement because the normal rules just don’t apply within 100 miles of any border crossing.

That’s not to say it’s a terrible bill. It just could have been a much better bill. It will prevent inland use of facial recognition tech without a warrant and, importantly, would force the federal government to develop and implement standards governing its use and (hopefully) set some baselines contractors would need to meet before selling their tech to government agencies.

At this point, the only thing Congress has done in response to the rapid deployment of facial recognition tech is express its concern and suggest some hearings might be in order. What it hasn’t done is prevent the sketchy tech from being deployed as rapidly as government agencies can nail down contracts. Hitting the pause button for a few years is a far better idea than allowing things to continue to run towards the direction of amok, especially when it has been made clear most companies’ offerings are biased and inaccurate.

Filed Under: ban, cory booker, facial recognition, jeff merkley

Ajit Pai Pretends To Care About Identity Fraud That Plagued Net Neutrality Repeal

from the disinformation-nation dept

Mon, Jul 16th 2018 06:29am - Karl Bode

You’ll of course recall that during the net neutrality repeal the FCC’s public comment process was flooded with bogus comments in support of (and in a few instances in opposition to) the FCC’s plan. Many of these comments came from a bot that filled the proceedings with fake comments in perfect alphabetical order, something that should have been pretty easy to prevent (had the FCC actually wanted to). Many of the comments came from people that had their identities lifted to support the repeal (like myself), while other commenters were, well, deceased.

Nobody’s been able to yet confirm who was behind the identity fraud and bot attack, in part because the FCC actively blocked a law enforcement investigation attempting to find out. The general consensus is that “somebody” (either ISP-linked outfits or some group of partisans) was hoping to erode trust in the comment process to try and downplay the massive public backlash to the repeal. But it should also be noted that this is a problem that extends beyond the FCC, and has impacted other major policy decisions at major agencies government wide.

Back in May, Senators Senators Jeff Merkley and Pat Toomey fired off a letter to the FCC, noting that they too had their identities stolen during the repeal, while urging the FCC to you know, actually do something about it:

“Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission?s (FCC?s) comment period for the net neutrality rule,? the Senators wrote in a letter to Pai. ?We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process.”

Pai appears to have finally gotten around to responding to the Senators. In a response letter (pdf) Pai acknowledges that he too had his identity lifted during the scandal-ridden proceeding:

“It is troubling that some bad actors submitted comments using false names,? Mr. Pai said. ?Indeed, like you, comments were submitted in my name and my wife?s name that reflect viewpoints we do not hold.”

Pai, whose agency almost gleefully ignored the vast majority of Americans in opposition to the repeal, proceeds to note that the FCC certainly does need to update its systems (despite the fact it just spent nearly $3 million doing so). Pai agreed that the very least it could do was implement some kind of CAPTCHA system to at least thwart automated bots like the one used last fall. He acknowledged that he’d press Congress for additional funding (something he knows isn’t likely in an era where gutting regulatory agencies is the fashion trend), but there’s certainly no guarantee that anything will actually come of this promise.

In his letter, Pai once again tries to downplay the importance of public comments, despite the fact this was the only real opportunity the public had to express its thoughts on the repeal. He also, amusingly, pretends that the repeal had something to do with the agency’s consideration of the facts:

“I can assure you, however, that the Commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position appears to have greater support, nor does it attribute greater weight to comments based solely on the submitter’s identity. And the Commission is grateful to all commenters who engaged substantively with the legal and public policy questions presented in this important rulemaking. Indeed, a review of the Restoring Internet Freedom Order clearly demonstrates that the Commission’s decision was based on a careful review of the relevant law and facts.”

It shows no such thing. The FCC based the lion’s share of the net neutrality repeal on completely debunked lobbyist data points, then ignored millions of Americans clearly annoyed at the agency’s decision. It then thought the best response to the identity fraud problems plaguing the public comment system would be to ignore a law enforcement inquiry entirely. That is, when it wasn’t busy apparently making up a DDOS attack in a bizarre effort to downplay the impact of angry John Oliver viewers (something FOIA e-mails recently confirmed).

Pai also uses the letter to again try and conflate automated form letters commonly used by both sides of the debate (which I affectionately refer to as “outrage-o-matic” letters) with the wholesale bot-driven fraud that occurred. It’s here you’ll notice the FCC oddly has no data on bots or the half a million comments that were found to have originated in Russia, but has ample data on pro-net-neutrality folks that happened to have used an automated letter system but included an incorrect address:

“With respect to your other inquiries, the FCC does not have any information regarding whether any fake comments were submitted by foreign governments, nor can we verify the total number of comments that may have originated from bots. Similarly, we do not have a specific total number of fake comments that were filed. We do believe, however, that at least eight million pro-Title II comments were not filed with accurate names and/ or addresses. For example, 7,568,949 identical comments consisted of a single, pro-Title II sentence: “I am in favor of strong net neutrality under Title II of the Telecommunications Act.”

If it’s not clear, Pai’s still trying to downplay the massive, undeniable and bipartisan opposition to his policies via whataboutism.

Online form letters — even if their users don’t put in accurate addresses or names — are not the same thing as the bot-driven fraud that occurred using dead people; fraud Pai ignored because undermining trust in the public comment system benefited him. And while evidence does suggest some gamesmanship certainly did occur on the pro-net neutrality side as well, that doesn’t change the fact that the vast majority of legitimate comments filed with the FCC opposed his repeal (which reflects numerous different surveys on the subject).

It’s very difficult to overstate what a shitshow this FCC’s attack on net neutrality was. It’s something historians are going to spend years dissecting, and blowback from the ham-fisted tactics will reverberate in tech policy circles for decades. And while Pai’s still busy making all of the same bogus claims about his “fact-based” policies choices during the repeal, anybody expecting him to actually address the system vulnerabilities that helped bots degrade trust in the public comment process to his direct benefit–hasn’t been paying attention.

Filed Under: ajit pai, comment system, fcc, identity fraud, jeff merkley, net neutrality, pat toomey

Senators Ask FCC Why It Did Nothing To Stop Their Names From Being Fraudulently Used During Net Neutrality Repeal

from the fake-plastic-trees dept

Wed, May 23rd 2018 06:41am - Karl Bode

Last year you’ll recall that somebody abused the nonexistent privacy protections at the FCC website to flood the net neutrality repeal proceeding with millions of fake comments. While the vast majority of real people oppose the repeal, a bad actor was able to either fraudulently use the identities of real people (like myself), or hijack the identities of dead people to spam the proceeding with bogus support. The goal: undermine public trust in the public comment period in order to downplay the massive opposition to the FCC’s handout to AT&T and Comcast.

Up to this point, the FCC has done less than nothing to investigate the fraud or prevent it from happening again, largely because it aided the FCC’s agenda. In fact, the FCC went so far as to block a law enforcement investigation into who was behind the fraud.

Hoping to pull the scandal back onto a front burner, Senators Jeff Merkley and Pat Toomey this week sent a letter to the FCC stating that they’ve discovered that their names were also used to post fake comments during the repeal. The two demanded the FCC implement some kind of CAPTCHA system to help police automated bogus comments (a bot seems to have posted millions of bogus comments in alphabetical order), and asked what the agency was doing to prevent the problem from occurring again:

“Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission?s (FCC?s) comment period for the net neutrality rule,? the Senators wrote in a letter to Pai. ?We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process.”

The FCC has been hammered for months over this scandal and has responded with the policy and regulatory equivalent of a shrug. I was told by the agency that there was nothing that could be done after my own identity was fraudulently used to support the repeal. So far, there’s been absolutely no repercussions for the FCC or its staffers, though a GAO investigation is currently ongoing. It’s worth noting that this kind of behavior isn’t exclusive to the FCC, with other Trump regulatory actions also being hammered with bogus support via bot over the last year.

Filed Under: ajit pai, comments, fake names, fcc, jeff merkley, net neutrality, pat toomey, senate

Senators Introduce Bill To End Secret Law That Enabled NSA Surveillance

from the good-for-them dept

A bipartisan group of eight Senators have now introduced a bill to end the secret interpretation of the law which enabled the NSA, via the rubber-stamping FISA Court, to claim that the FISA Amendments Act enabled them to sweep up basically all phone call data on everyone.

The measure, coming amid daily revelations about the extent to which the National Security Agency is monitoring communications by Americans, would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions. The senators say the move would allow Americans to know how broad of a legal authority the government is claiming to spy on Americans under the Patriot Act and the Foreign Intelligence Surveillance Act (FISA).

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” explains Oregon Senator Jeff Merkley, a Democrat who has been an outspoken advocate for congressional oversight of surveillance programs. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies. We can’t have a serious debate about how much surveillance of Americans’s communications should be permitted without ending secret law.”

The bill will be put forth by Merkley, but co-sponsored by Senators Patrick Leahy, Dean Heller, Mark Begich, Al Franken, Jon Tester and Ron Wyden. Leahy, being the chair of the Judiciary Committee, is important, suggesting that this bill isn’t automatically dead in the water. During the FISA Amendments Act fight at the end of 2012, Leahy was one of only a few Senators (along with Merkley and Wyden) who pushed back on just doing a straight reauthorization. In fact, it sounds like this bill will be similar to the one that Merkley pushed as an amendment to the renewal of the FISA Amendments Act last year, which got shot down — but did score 37 votes in the Senate. Perhaps with Leahy’s support, and all the news going on, it can get a few more votes.

And, in case you’re wondering, yes, Congress can order the executive branch to declassify anything it wants, though obviously it needs to pass the law (and get past any potential veto). Declassifying how the FISC has interpreted the law should not be controversial. As we’ve been pointing out for years, under no circumstances would it make sense to claim that the official interpretation of what’s legal and illegal should be classified. Yes, certain techniques or methods might need to remain classified, but the law must be public. Hopefully, others in Congress will finally recognize that basic fact.

Filed Under: al franken, dean heller, fisa amendments act, fisc, jeff merkley, john tester, mark begich, nsa, patrick leahy, ron wyden, secret law, senate, surveillance

LEAKED: White House's Bogus Talking Points On Why Senate Should Trample The 4th Amendment

from the lovely-stuff dept

Want to know the White House’s key propaganda lines for refusing to allow proper oversight into how the NSA is spying on us all? Well, sit back and read on, because the White House’s “talking points” on why the Senate should reject four key amendments to try to roll back some of the excesses of the broad and massive secret program to collect tons of data on Americans, has been leaked. First, some background.

As we noted yesterday, there was a “debate” in the Senate concerning the FISA Amendments Act renewal, and four specific amendments that some Senators tried to add to it to make the renewal less problematic. If you haven’t been following this whole mess, you can read back through our FISA Amendments Act stories here, but the short version is that this is the bill that “legalized” warrantless wiretapping — and which (it has since been revealed) is likely being used by the NSA to collect reams of data on Americans, despite the bill’s plain text suggesting that it can only be used on foreigners. At issue is that the FISA Court has apparently issued an “interpretation” of the bill, which allows for a very broad reading of the text — so broad, that it likely contradicts what most people believe the bill says. Only a small group of people know what this secret interpretation is, and while sitting Senators and Congressional Reps can find out, most do NOT have staff members with the necessary clearance to explain it to them. For this reason, most of the people voting on this bill have no idea how it is being used, and sometimes argue that it is not being used in ways that it is almost certainly being used (i.e., to scoop up data on many Americans without warrants). These provisions — the FAA for short — were set to expire last year, but were renewed for one year, ostensibly to allow for “real” debate. Of course, despite having a whole year, no debate appeared, and instead we got yesterday’s charade.

Four specific amendments to try to fix (or, at least, to minimize the damage) were proposed. The EFF has a pretty quick rundown of the four proposed amendments. The White House has been urging the Senate to reject all of them and to extend the FISA Amendments Act for five more years with no questions asked. Three of the proposed amendments were already rejected last night. This morning, a short debate and then a vote will progress on the last, the Wyden-Udall amendment. Even though the other three have already been rejected, we’ll explore the talking their points too, but let’s start with the talking points on the Wyden-Udall amendment. Here’s the White House summary:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

That’s a fair assessment and seems perfectly reasonable. Here’s the EFF on why this is important:

Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans. The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a “significant and systematic” way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans’ privacy.

Ron Wyden’s amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.

In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting “backdoor searches,” whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government’s database of intercepted communications and reviews the Americans’ communications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.

So what are the talking points from the White House for why this is a bad thing?

* The Administration opposes this amendment. The goal of this amendment is to obtain an estimate of the number of U.S. persons’ communications that may have been collected. Two independent inspectors general have determined, and reported to Congress, that it is not feasible to provide actual numbers or estimates. They also found that an effort to provide such numbers by deliberately trying to identify U.S. person information would adversely affect the privacy of any U.S. persons whose incidentally collected communications may exist within the collected data. * Representatives of the Intelligence Community have briefed the Judiciary and Intelligence Committees in more detail as to why it is not feasible to provide such numbers or estimates and stand ready to answer questions from other Members in a classified setting. * FAA contains significant privacy protections for U.S. persons, to include extensive reporting to Congress to allow Congress to assess the privacy impact of FAA on U.S. persons.

Yes, the same bullshit we’ve heard before. Telling Congress how many Americans the NSA spied upon using the FAA (despite the NSA only having a mandate to watch foreigners) would somehow violate the privacy of those Americans. That is, to put it simply, insane. What they almost certainly mean is that they’ve collected such a large treasure trove of information, much of which they haven’t actually gone through, that to estimate how many people’s info was collected would require actually looking at all that data collected, which they’re not supposed to do. This, still, is insane — as it basically reveals the fact that, contrary to what most people think, and contrary to the plain language of the bill, the NSA is almost certainly using the FAA to scoop up communications on huge swaths of the American public. This is why Senator Wyden keeps insisting that the public — and members of Congress — would likely be shocked to find out the truth here.

The idea that it is “not feasible” to come up with a number is silly, however. There are ways to estimate these things, and it’s nonsense that they won’t provide an estimate. It certainly would not compromise security to admit that. It might just compromise the fact that the NSA and the administration are abusing the FAA to spy on tons of Americans.

The “briefing” members bit is also fairly bogus. We’re talking about the interpretation of a public US law. That shouldn’t require a Senator to go into a secret room to get a secret briefing. But, more importantly, as mentioned, most Senators simply do not have staff with the necessary clearances for such a briefing — so while a member could take the initiative to learn this info, they are both unlikely to actually do so and if they do, unlikely to have an expert on hand who can help explain what it all means.

Finally, the argument that there are “significant privacy protections” is belied by the fact that the NSA has already been called out for violating the 4th Amendment under this act at least once. That, alone, should call for further scrutiny, but supporters of the FAA are twisting this around to claim that “the system works.” As Julian Sanchez notes, the existing oversight might catch accidental abuse, but cannot and will not catch systematic abuse, which is what it appears is happening.

So these “talking points” hardly address the problem, and only serve to further mislead, as the White House looks to protect its own administration’s domestic surveillance activities. When President Obama was originally running for office in 2008, he campaigned against these provisions (before eventually voting for them). Apparently, that campaigning was a flat out lie. Now he’s not only supporting the provisions, his administration is being willfully misleading concerning what they mean.

Moving on to the (already rejected, but still important) Merkley Amendment. This one involved requiring that secret FISA Court rulings that interpret the FAA be made public (in redacted form, if necessary). This seems eminently reasonable. Who could be against that? Well, the White House, for one. Here’s why:

* We oppose this amendment. The Executive Branch works diligently to ensure Congress is fully informed of the intelligence collection operations under FAA, notwithstanding the need for the Executive Branch to carry out certain sensitive intelligence activities in a classified manner. * As part of Congress’ intensive oversight of FISA activities, the Intelligence and Judiciary Committees receive, in classified form, all FISA Court opinions that include a significant interpretation of FISA provisions. * We have committed to reviewing FISC opinions for release to the public with necessary redactions to protect national security equities and that effort is ongoing. * This process must, by necessity, be undertaken with great care. In many cases, classified information is so intertwined with the legal analysis that redacting the classified information leaves a document that lacks any meaningful analysis. Because the Executive Branch is already undertaking a review of the FISC opinions for possible public release, we believe this amendment is unnecessary.

This is completely bogus, again. As we noted yesterday, going against this amendment is like arguing that we should all be able to interpret the Constitution with just the document itself, and all Supreme Court rulings that work out the nuances and interpretations should be kept secret. The idea that the Executive Branch makes sure that Congress “is fully informed of the intelligence collection operations under the FAA” is both laughable and meaningless at the same time.

Just this very debate — and this very document — prove that the White House isn’t about keeping Congress “fully informed” but about pulling the wool over their eyes with misleading statements and kinda/sorta true in the letter, but bogus in the spirit, arguments. Members of Congress have flat out said that the FAA does not impact Americans’ communications at all, when that it’s known to be absolutely false. Also, the fact that the administration may provide classified briefings to Congress is, again, besides the point. We’re talking about allowing the public to understand the secret interpretation of a law that impacts many Americans directly (and in which that interpretation is almost certainly contrary to the plain language and public belief about the bill), and the White House falls back on this “well we’ll tell you in secret” argument?

The idea that the administration has committed to reviewing FISA opinions for public release is equally laughable. This administration has been one of the most secretive on record when it comes to exposing this kind of information, all while patting itself on the back as being the most transparent.

Moving on, we have the rather basic Leahy Amendment that shortens the date on which this extension expires from 2017 back to June 1 of the 2015, to basically move in the walls for the next time we’ll have this debate in the closing days before “OMG TERRORISTS WILL DESTROY US ALL!!!@!@” again. Rather than simply punting the ball on this issue as far down the field as possible, Leahy is trying to force at least some review within the term of Obama’s presidency, rather than long after it’s over. This, too, was voted down so the longer timeline stays in place. The White House is pleased, for a whole bunch of completely bogus reasons:

* We support the House passed sunset date of 2017 and oppose any effort to shorten the sunset date to 2015. The extensive congressional and judicial oversight and the strong track record of compliance supports an extension longer than, not shorter than, the original authorization. * Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues. * Frequent Congressional and public debate on intelligence authorities poses a greater risk of inadvertent disclosure of classified information. * No additional reporting requirements are necessary. Section 702 of FISA is a well calibrated statute that provides for ample oversight by all three branches of government. This oversight framework ensures robust protections for the privacy and civil liberties of U.S. persons.

This one should just make people angry. Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

That second point is the real doozy. Basically, the White House doesn’t want this debate, because Senators who know what kind of scam they’re pulling might (gasp) accidentally reveal too much. So, let’s just not talk about it at all. And let the NSA keep abusing it. Because, otherwise, we might actually find out about the abuse. As for the “oversight” claim, I think we’ve already covered just how completely bogus that claim really is.

Finally, there’s the Paul amendment, which serves to reinforce the basic principles of the 4th Amendment, in reiterating that all communications are subject to the 4th Amendment’s limitations on searching. Currently, many in law enforcement rely on some really questionable precedents to argue that people don’t really have an “expectation of privacy” in their email. It’s disingenuous in the extreme. This amendment got voted down by a whopping 79 to 12 votes. I’m sure that pleased the White House, who argued the following:

* We strongly oppose this amendment as it will effectively repeal the FISA Amendments Act and other federal laws by requiring a probable cause determination to obtain information on our foreign adversaries located overseas. As such, it would overturn years of federal law. * This proposed amendment would severely limit the effectiveness of law enforcement, authorities at all levels of government. For example, Governments rely on legal tools such as grand jury subpoenas. The use of such tools would be prohibited under the amendment if that information is drawn from almost any system of records.

In other words, they’re admitting that the FISA Amendments Act clearly tramples the 4th Amendment and allows for widespread surveillance of Americans without a warrant. Also, the Constitution isn’t about making life easier for law enforcement. It’s about the opposite. It’s specifically about making it more difficult for law enforcement, because that’s how a free society functions, by telling its law enforcement officials that they can’t just snoop on everyone, but need real oversight in the form of a warrant. So to argue that this might make the NSA’s job a bit harder isn’t just not compelling, it’s not even a legitimate reason, because it’s arguing that the government should, effectively, be allowed to do whatever the hell it wants if it “makes law enforcement’s job easier.”

It’s clear that the FISA Amendments Act is about to be extended, and the White House, even with completely bogus talking points, will prevail. But, reading through these talking points is just highlighting the depths to which our government will stoop to make sure they can continue to trample the basic principles of the 4th Amendment.

Filed Under: 4th amendment, fisa, fisa amendments act, jeff merkley, pat leahy, politics, privacy, rand paul, ron wyden, talking points, white house

Senate Finally Holds Weak 'Debate' On FISA Amendments Act… But Terrorism!

from the and-therefore-we-shouldn't-even-know-what's-going-on dept

While some in the Senate tried to skip over debate of the likely unconstitutional FISA Amendments Act, the Senate finally held a rushed and scripted “debate” today, which did very little to actually explore the issues (and the Senate Chamber was mostly empty during the “debate”). Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had “only four days!” to renew the FISA Amendment Acts or “important” tools for law enforcement would “expire.” It turns out that’s not actually true. While the law would expire, the provisions sweeping orders already issued would remain in place for a year — allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there “is no secret law” and that “the text is public.” That assumes that “the law” and “the text of the legislation” are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court’s rulings, you would not know what that meant in practice. That’s exactly the situation we have with the FISA Amendments Act… and it’s made even worse by the fact that those who have seen the still-secret interpretation — such as Senator Wyden — have made it clear that its quite different than what most people think the law says.

Even more ridiculous is that the text of the FISA Amendments Act has been set since September. There’s been plenty of time to actually debate these issues. Hell, last year’s renewal for just one year was conditioned on the promise from the Senate that there would be debate this year. Yet they wait until December 27th to hold this fake “debate” with Feinstein spreading FUD up and down about how not renewing this for another five years means the terrorists win? This is a really shameful display of Congress caving to law enforcement’s almost certainly unconstitutional desire to be able to widely spy on almost any information it can get its hands on, so long as they claim collecting that info might possibly somehow help in discovering illegal behavior by non-US citizens.

What’s amazing is that those supporting the renewal of the FISA Amendments Act continue to take it on faith that the law is not being abused, even as there’s already been an admission that some of the activities violated the 4th Amendment (but no further evidence of what happened or how that would be prevented), and even other tools that we were told were “proven” and “crucial” to the “war on terrorism” later turned out to be expensive boondoggles that were no help at all. Senator Saxby Chambliss was particularly ridiculous in this discussion, insisting that because there was that admission earlier this year that the 4th Amendment was abused, it shows that “oversight is working.” This ignores that no further exploration followed to see how widespread the abuse was. Again, Julian Sanchez highlights just how ridiculous this is by noting that the fact that the argument is completely tautological in saying that oversight works because abuse has been discovered.

Congress has both the mandate and the obligation to oversee how law enforcement is using its surveillance powers — and yet many of its members, led by Senator Dianne Feinstein and Saxby Chambliss, appear to be abdicating that job due to OMG TERRRORISM!@#!@#!!

Update: And they just voted on Senator Leahy’s amendment, which was a pretty simple one, just shortening the term of this extension from 5 years to 3 years. All it would do is require that the next debate on this happen sooner, rather than later, but it was voted down (52 to 38) by Senators who’d rather not even discuss the fact that they’re allowing the NSA and other law enforcement officials to regularly violate the Constitution. Just punt that question as far down the field as possible, I guess.

Update: And, down goes another amendment. Senator Merkley’s amendment would have “encouraged” that secret interpretations of the FISA Amendments Act made by the FISA court be made public (in redacted form). This seems like common sense, but the Senate voted it down (54 to 37) — because, apparently they like secret laws which the public isn’t even allowed to know about, even if it means the NSA can snoop on nearly all of their communications without a warrant.

Update: And there goes another one. Senator Rand Paul introduced an amendment clarifying that the 4th Amendment protects all of your communications. The Senate rejected it by an overwhelming margin, 79 to 12, because apparently protecting your privacy and upholding the 4th Amendment is not the kind of thing the Senate supports these days.

Filed Under: 4th amendment, dianne feinstein, fisa, fisa amendments act, jeff merkley, privacy, ron wyden, saxby chambliss

Harry Reid Routes Around Rand Paul; Says No Changes To Patriot Act Is 'An Excellent Compromise'

from the do-we-use-different-dictionaries dept

We’ve been following the Senate leadership (of both major parties) attempts to push through an extension of some controversial Patriot Act surveillance provisions. As noted, the Senate decided to quickly push the matter towards a vote, cutting off outside debate over the provisions. However, that did still leave room for debate on the floor and the introduction of amendments, and some Senators spoke up — and spoke up vehemently. Rand Paul had a bunch of amendments and threatened to delay things. He pointed out that Senator Harry Reid lied, after promising to “set aside a week’s worth of debate” on the Patriot Act. Meanwhile Senators Ron Wyden, Mark Udall and Jeff Merkley all spoke out against parts of the Patriot Act and these extensions.

And yet… Senator Reid decided to get around all of that, by using a procedural trick to dump the existing bill and instead attach his bill to what appears to be a totally unrelated House business bill:

Sen. Reid basically killed his current bill and and opted to take up a House small business bill (it’s in a form that’s considered filibuster-proof as far as starting debate goes). Neither Rand Paul nor anyone else can object to this. Reid then amended the House bill with the entire text of the Patriot Act extension.

Of course, where this gets insane is in Senator Reid’s explanation for cutting off all of these complaints and amendments:

“We have worked over the last several days to work something out that I think is an excellent compromise,” said Reid on the Senate floor. “Is this bill something everyone in the Congress likes? I think the answer is no. But we all agree it’s important legislation.

“I have had many conversations with Senator Paul and tried to come up with a process to allow Senator Paul and others to offer amendments. I have been unsuccessful,” Reid said.

I think Senator Reid and I have different dictionaries. How is making no changes and simply extending out the existing law for four years, despite such vocal opposition, “an excellent compromise”? What “compromise” did he make, other than to his principles and his oath to serve the people?

Furthermore, if he tried to allow these Senators to offer amendments, how is cutting them off from being able to offer amendments in line with what he claims he tried to do? Rather than cutting them off and using a procedural trick, why didn’t he let them offer amendments?

Either way, it sounds like the extension will be somewhat delayed, meaning that the provisions may lapse for a day or two. Some supporters of the extension are suggesting that this is a horrible thing that will put us all in danger, but that’s ridiculous. First of all, existing investigations are grandfathered in, and second of all, it’s just a few days.

Perhaps the most ridiculous part of all of this is that one of the reasons why they’re saying this needs to be rushed through is that the bill itself needs to be flown to Europe so that the President (who is visiting Europe) can sign it. Do they no realize that these things can be done electronically these days?

Filed Under: harry reid, jeff merkley, mark udall, patriot act, rand paul, ron wyden