mass surveillance – Techdirt (original) (raw)

Partisan Bullshit Tanks House Section 702 Reform Efforts

from the fuck-the-constituents dept

It took the FBI carelessly, stupidly, and unlawfully targeting members of Trump’s inner circle to make Section 702 program reform a thing that might actually happen.

It’s kind of astounding, considering the Snowden leaks provided a much better argument for reform, as well as the FBI’s long-documented history of abusing its access to Section 702 collections to engage in warrantless surveillance of American citizens.

But it wasn’t until a former Trump advisor and Trump acolyte in the House got caught up in the FBI’s dragnet that things started to look a little grim for supporters of clean reauthorization. Years of abuse was considered fine right up until it affected people who mattered… at least to themselves and the former president they idolize.

There’s been plenty of opposition to unchecked surveillance over the years, but it has almost always been led by Senator Ron Wyden. Wyden’s efforts have been shot down by his own colleagues, who have been unwilling to challenge the Intelligence Community’s claims nothing about any surveillance authority should ever be changed because terrorism.

More than two decades after the 9/11 attacks, this attitude remains in full force. But it has been made worse by hyper-partisanship — something actively encouraged by Donald Trump during his term in office and made worse by Republicans who both want to ingratiate themselves with a former president as well as show their voting base they’re doing something to address Deep State conspiracies they’ve been stoking since Trump first took office.

The thing is this could have led to meaningful reforms, even if the motivations were highly suspect. As for the FBI, it offered only two arguments in defense of its warrantless access to US persons’ communications: (1) TERRORISM!, and (2) [hilariously] pretty much all of our searches of Section 702 collections are unlawful if you bring the Fourth Amendment into it.

The vote on extending Section 702 has been pushed back several times. Reform efforts (again led by Wyden) have been mounted. The rep heading the House Intelligence Community also pushed his own set of “reforms,” but they did nothing more than provide protections to congressional members who might find themselves subjected to the FBI’s continuous surveillance abuses.

The vote in House on proposed reforms and Section 702 reauthorization has given the FBI a free pass until the next renewal. As Elizabeth Nolan Brown notes for Reason, Democrats unwilling to give Republicans what they wanted (even if it meant better protections for their constituents) overwhelmingly voted in favor of an unaltered continuation of everything that’s been abused for years.

A measure requiring federal agents to get a warrant before searching American communications collected as part of foreign intelligence failed to pass the House of Representatives today. The measure received 212 votes for and 212 votes against.

“This is a sad day for America,” said Rep. Thomas Massie (R–Ky.). “The Speaker doesn’t always vote in the House, but he was the tie breaker today. He voted against warrants.”

But it was largely Democrats who sank the warrant requirement. House Democrats voted against the measure 84–126, while Republicans voted for the measure 128–86.

There’s the partisan split. That’s how you end up with a tie, which means the unaltered Section 702 moves on to the Senate for a vote. Had just a few Democrats been willing to place the concerns of Americans ahead of their own antipathy towards those on the other side of aisle, a warrant requirement might have been put in place on the House side of things.

But that didn’t happen. And part of the reason that didn’t happen is because the top-ranking Democrat on the House Intelligence Committee decided to swing votes by lying to his fellow representatives. Dell Cameron brings the news and the screenshots:

Cameron’s post for Bluesky says:

The head Dem on House Intel was caught by Politico reporter blasting disinformation out to colleagues ahead of a vote on the 702 wiretap program

Following that were screenshots of tweets (or whatever the fuck) made by Politico reporter Jordain Carney about the last-minute lobbying performed by Congressman Jim Himes, a Democrat representing Connecticut.

If you can’t see/read the screenshots, here’s what they say:

Peak into some of the behind-the-scenes lobbying on 702 ahead of today’s vote:

Himes sent a text to colleagues, explaining that he opposes warrant requirement, calling it an “extreme amendment that goes far beyond” what PCLOB [Privacy and Civil Liberties Oversight Board] recommends, per message I saw,

But…

Sharon Bradford Franklin (chair of the PCLOB, speaking in individual capacity) told me this morning: “I strongly disagree with the characterization” of the amendment “as going far beyond what the PCLOB recommends”

Called it “consistent” and in many ways “similar” to majority rec

_Added that PCLOB report notes it would support Congress going further and said the amendment includes similar exceptions to what P_CLOB recommended

In other words, Rep. Himes didn’t like what he was hearing from the PCLOB (if, indeed, he bothered to check its views at all) and didn’t want the Republicans to get a win, so he actively misrepresented the PCLOB’s views to swing votes in favor of clean reauthorization. We’ll never know how many Democrats he swung to his side by doing this but the voting tally suggests a lot of Democrats either bought into Himes’ bullshit or simply couldn’t bear giving House Republicans a win… even if that win would have respected Americans’ rights and (as a bonus) shut down the pro-surveillance efforts of the Republican leader of the House Intelligence Committee.

This now moves on to the Senate, which has its own suggestions for reform. Fortunately, Ron Wyden is a senator, which means there’s still a chance the FBI will be subject to warrant requirements if it wants to search NSA data for US persons’ communications. Here’s the latest from Wyden, who has spent his entire career pushing back against surveillance power expansions:

U.S. Senator Ron Wyden, D-Ore., vowed to oppose legislation passed by the House of Representatives that would reauthorize Section 702 of FISA and expand warrantless surveillance, in a statement today.

“The House bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history,” Wyden said. “It allows the government to force any American who installs, maintains, or repairs anything that transmits or stores communications to spy on the government’s behalf. That means anyone with access to a server, a wire, a cable box, a wifi router, or a phone. It would be secret: the Americans receiving the government directives would be bound to silence, and there would be no court oversight. I will do everything in my power to stop this bill.”

Section 702 remains, at least partially, on the ropes. The FBI’s abuses might finally see themselves curtailed by codification, something that would be far more permanent than its own voluntary oversight efforts or the FISA court’s periodic reprimands. No matter how disingenuous the effort being made by many Republicans is, the end result would be better protections for all Americans — something that can’t be easily undone no matter who’s sitting the White House in 2025.

Filed Under: 4th amendment, fbi, mass surveillance, nsa, partisanship, section 702, surveillance, warrants

Biden Administration Shouts ‘ONE MORE YEAR! ONE MORE YEAR!’ As Section 702 Stalemate Continues

from the only-if-FBI-agents-show-up-with-stuff-scrawled-on-posterboard dept

There are a variety of reasons to alter, if not actually end, the Section 702 collection. Whatever value it may have in terms of national security, the very real fact is that it has been endlessly abused by the FBI since its inception.

It’s a foreign-facing collection, which means it harvests communications and data involving foreign targets of US surveillance. But there’s a massive backdoor built into this collection. Collecting foreign communications often means collecting US persons’ communications with foreign persons or entities.

That’s where the FBI has gone interloping with alarming frequency. US persons’ communications are supposed to be masked, preventing the FBI from engaging in warrantless surveillance of US-based communications. This simply hasn’t happened. And the FBI has not only performed second-hand abuse of this collection regularly, but it has equally regularly refused to be honest with the FISA court about its activities.

The latest rejection of a clean reauthorization of Section 702 has nothing to do with the FBI’s continuous refusal to play by the rules. Instead, it has to do with the few times it decided to engage in some backdoor action that targeted the party in power or people temporarily involved with inflicting four years of Donald Trump on a nation that was definitely greater before someone started promising to make it great again.

However, the FBI — despite having abused its access for years — continues to insist the program should not be ended or altered. It has actually admitted its backdoor searches would otherwise be illegal without this program and its side benefits — something that should have hastened legislators on both sides of the political aisle to shut the whole thing down until these critical flaws were patched.

Instead, the whole thing have devolved into the expected in-fighting. Some legislators proposed meaningful reforms to the program, which were soundly rejected by a lot of Republicans simply because some Democrats were involved. The Republicans heading up the House Intelligence Committee proposed their own reforms, but the only thing they really wanted to change was the FBI’s ability to place Republicans under surveillance.

Meanwhile, the Biden Administration has decided the FBI is right, no matter how often it’s been wrong. Ignoring years of casual abuse, the Biden team has pushed for a clean reauthorization — something it may not have done if it weren’t for all the Republicans demanding (mostly for self-serving reasons) the program be ended or altered.

Unfortunately, Section 702 continues to live on, even if it’s in an unresponsive coma at the moment. Rather than let the surveillance authority expire, a bi-partisan effort did the country dirty by extending it until April 2024 where it could be further disagreed about following the return of Congressional reps to Capitol Hill.

April just isn’t good enough, apparently. The Biden Administration wants to buy even more time without any termination or authorization, presumably in hopes that the current furor will die down and this executive power will be granted a clean re-authorization. (Of course, by that point, there may be an actual Fuhrer in play, given Donald Trump’s early sweeps of critical primaries.)

Here’s Charlie Savage with more details for the New York Times:

The Biden administration is moving to extend a disputed warrantless surveillance program into April 2025, according to officials familiar with the matter.

The decision by the administration, which requires asking for court approval, seemed likely to roil an already turbulent debate in Congress over its fate. The program has scrambled the usual partisan lines, with members of both parties on each side of seeing the program as potentially abusive of civil liberties or as necessary for protecting national security.

This is probably preferable to holding a budget bill hostage in an executive office display of “I’ll hold my breath until I get my way.” And it’s preferable to Republican efforts to alter Section 702 simply to protect themselves from illegal surveillance. But it’s definitely not preferable to actually engaging with the inherent problems of this surveillance program, all of which seem to lead back to the FBI and its insistence on abusing its access.

This throws these problems on the back burner for another year. And it will be yet another year where the FBI abuses its access. We can make this assumption because there’s never been a year where the FBI hasn’t abused this surveillance power. Refusing to address an issue that’s been publicly acknowledged for several years now just to ensure the NSA doesn’t lose this surveillance program is irresponsible. The Biden Administration’s apparently tactic agreement with assertions made by an agency that has proven it can’t be trusted doesn’t bode well for anyone.

And, if this yearlong reprieve results in a clean reauthorization, the Biden Administration will quite possibly be handing this renewed power to Republicans now allowed to engage in their worst excesses, thanks to the re-election of Dumpster Fire Grover Cleveland.

The best thing the current administration could do at this point is allow the authority to die, which would force Republicans who love power (but hate to see it wielded against them) try to reconcile their desire for a surveillance state with the inevitable reality they will sometimes be on the receiving end of this surveillance. The worst thing it can do is what it’s doing now: pressing the pause button because it doesn’t have the desire or willingness to go head-to-head with an agency that claims — without facts in evidence — the only way it can keep this country secure from foreign threats is by warrantlessly spying on Americans.

Filed Under: biden administration, fbi, fisa court, joe biden, mass surveillance, nsa, section 702, surveillance

Section 702 Powers Back On The Ropes Thanks To Partisan Infighting

from the whatever-it-takes dept

I’m normally not a “ends justifies the means” sort of guy, but ever since some House Republicans started getting shitty about Section 702 surveillance after some of their own got swept up in the dragnet, I’ve become a bit more pragmatic. Section 702 is long overdue for reform. If it takes a bunch of conveniently angry legislators to do it, so be it.

The NSA uses this executive authorization to sweep up millions of “foreign” communications. But if one side of these communications involves a US person, the NSA is supposed to keep its eyes off of it. The same thing goes for the FBI. But the FBI has spent literal decades ignoring these restraints, preferring to dip into the NSA’s data pool as often as possible for the sole reason of converting a foreign-facing surveillance program into a handy means for domestic surveillance.

The FBI’s constant abuse of this program has seen it scolded by FISA judges, excoriated by legislators actually willing to stand up for their constituents’ rights, and habitually abused verbally at internet sites like this one.

Not that it has mattered. For years, the NSA (and, by extension, the FBI) has been given a blanket blessing of their spy programs by legislators who have been convinced nothing but a clean re-authorization is acceptable in terrorist times like these.

Fortunately for all of us, the future of Section 702 remains in a particularly hellish limbo. As Dell Cameron reports for Wired, Republicans are going to war against other Republicans, limiting the chances of Section 702 moving forward without significant alteration.

The latest botched effort at salvaging a controversial US surveillance program collapsed this week thanks to a sabotage campaign by the United States House Intelligence Committee (HPSCI), crushing any hope of unraveling the program’s fate before Congress pivots to prevent a government shutdown in March.

_An agreement struck between rival House committees fell apart on Wednesday after one side of the dispute—represented by HPSCI—ghosted fellow colleagues at a crucial hearing while working to poison a predetermined plan to usher a “com_promise bill” to the floor.

This makes it sound like this is a bad thing. It isn’t, even if those thwarting a clean re-auth have extremely dirty hands. Legislators should definitely take a long look at this surveillance power, especially when it’s been abused routinely by the FBI to engage in surveillance of US persons who are supposed to be beyond the reach of this foreign-facing dragnet.

Some in the House want the FBI to pay for what it did to Trump loyalists. Some in the House want the FBI to do whatever it wants, so long as it can claim it’s doing (our?) God’s work in its counterterrorism efforts. Excluded from the current infighting are people who actually give a damn about limiting surveillance abuses, shunted to the side by political opportunists, loudmouths, and far too many legislators who refuse to hold the FBI accountable.

What’s odd about this scuttling is the reason it happened. It had nothing to do with Section 702 and everything to do with the government’s predilection for buying data from brokers to avoid warrant requirements erected by Supreme Court rulings.

The impetus for killing the deal, WIRED has learned, was an amendment that would end the government’s ability to pay US companies for information rather than serving them with a warrant. This includes location data collected from cell phones that are capable in many cases of tracking people’s physical whereabouts almost constantly. The data is purportedly gathered for advertising purposes but is collected by data brokers and frequently sold to US spies and police agencies instead.

Senior aides say the HPSCI chair, Mike Turner, personally exploded the deal while refusing to appear for a hearing on Wednesday in which lawmakers were meant to decide the rules surrounding the vote. A congressional website shows that HPSCI staff had not filed one of the amendments meant to be discussed before the Rules Committee, suggesting that at no point in the day did Turner plan to attend.

And that’s where we are now: legislators refusing to authorize one form of domestic surveillance because it would rather give the feds a pass on a much more prevalent form of domestic surveillance. The former once ensnared some of Trump’s buddies. The latter has yet to do so.

The infighting continues, with one side being rallied by none of than Fox News, which prefers to cater to its base, rather than provide any reporting or analysis that might accurately portray current events. The spin being pushed by Fox claims the alterations added to the bill would somehow prevent the NSA (and, by extension, the FBI) from surveilling foreign terrorists.

A Fox News report published Thursday morning, while accurately noting that it was Turner’s threat that forced Johnson to cancel the vote, goes on to cite “sources close to the Intelligence Committee” who offered analysis of the events. The sources claimed that Turner was compelled to abandon the deal because the “compromise bill” had been sneakily altered in a manner that “totally screws FISA in terms of its ability to be a national security tool.”

While redirecting blame away from Turner and his cohorts, the claim is both false and deceptive, relying on assertions that, while farcical perhaps to legal experts, would be impossible for the public at large (and most of the press) to parse alone.

Section 702 still has a good chance to survive intact. This infighting actually makes it much less likely any true reform will take place. Grandstanding has replaced oversight. But, at least for now, we can be assured the surveillance program will remain one step away from being ditched until House Republicans can reconcile their desire to protect people like Carter Page with their desire to treat everyone a little bit on the brown side as a potential terrorist.

Filed Under: fbi, fisa, house intelligence committee, mass surveillance, mike turner, nsa, russia, section 702

Senate Undercuts Section 702 Reform Efforts By Stapling Blanket Approval To A Must-Pass Budget Bill

from the no-debate-allowed dept

The most serious opposition to extending Section 702 surveillance authorities since the immediate aftermath of the Snowden leaks came from a perhaps-unexpected source: House Republicans.

Of course, this isn’t an altruistic effort. This is purely politically motivated, driven by abuses of surveillance authorities by the FBI. The FBI has always done this. It just so happens that this time, Republicans and Trump acolytes got wrapped up in the FBI’s perpetual abuses of its FISA powers.

One would have hoped for a more unified opposition. But the periodic renewal of executive surveillance powers is always a political plaything, often opposed by those who don’t have their guy in the White House and supported by those who do. This was simply more of the same, only more so, since Republicans are now more willing than ever to engage in paper-waving and saber-rattling, especially if doing so might ingratiate them with a voting base willing to engage in insurrection to give their favorite lame duck president another shift at the wheel of the nation.

Also, as usual, Senator Ron Wyden and other privacy-focused legislators have offered their own opposition to clean renewals of surveillance powers. Section 702 expires at the end of the year, and these legislators hoped to head that off by introducing an expansive set of reforms that might force 702 to be a bit more constitutionally compliant.

The Government Surveillance Reform Act — sponsored by Roy Wyden, Mike Lee, Warren Davidson, and Zoe Lofgren — would have altered the most often-abused aspects of Section 702 surveillance authorities.

The bill’s reforms include:

Those reforms would hopefully deter the FBI’s abuse of these powers, as well as introduce a host of new protections for Americans’ data, no matter which third party is doing the collection. The Third Party Doctrine would have been significantly altered by this effort, codifying protections the federal court system has been extremely reluctant to extend to the people paying their salaries in hopes of seeing it act as a check on government power.

But this effort, which has garnered the support of nearly 20 legislators and nearly two dozen rights groups, no longer matters. At least not for the moment. There’s a chance this bill could become law in the future, but it appears 2023 will come to a close like it has every year has since these powers were first introduced: with a clean re-authorization of controversial, constantly abused surveillance powers.

As Dell Cameron reports for Wired, the Senate has effectively taken Section 702 off the legislative playing field. With the year closing out, federal legislators must pass a budget bill to keep the government operational. And, as is always the case with “must-pass” bills, legislators are scurrying to attach their pet projects to a bill that has to be approved to keep thousands of government employees employed and hundreds of government services operational.

A senior congressional aide tells WIRED that leadership offices and judiciary sources have both disclosed that discussions are underway about saving the Section 702 program in the short term by attaching an amendment extending it to a bill that is sorely needed to extend federal funding and avert a government shutdown one week from now.

A zero-reform extension of Section 702 is now attached to the budget bill like a privacy-destroying remora. And while it’s sure to generate some opposition from those opposed to clean re-authorization (including several Republicans), it’s unlikely to be detached if doing so means a government shutdown.

Once again, the discussion is no longer about whether or not the powers are justified or often abused. Instead, it just more of the same old partisan bullshit with a powerful Democrat attaching the rider to the budget bill while less powerful Republicans (at least in this instance) offer up ineffective opposition.

An aide to Jim Jordan, the Republican chair of the House Judiciary Committee, said Jordan was firmly on the side of the reformers and would not support extending 702 through a temporary measure. Chuck Schumer, the senate majority leader, did not respond to a request for comment Thursday afternoon.

This opposition might be vocal, but it’s hardly useful. Republicans are no more willing than Democrats to be seen as the driving force behind a government shutdown. And both parties have used this tactic — the attachment of something reprehensible to yearly budget bills — to push legislative agendas past their political opponents.

And that means a power that is supposed to be used to target foreign subjects of interest will continue to be used to engage in domestic surveillance.

While the NSA is not allowed to target the communications of “US persons” (an umbrella term for US citizens, legal residents, and corporations), the government has long been permitted to query the database for information on US persons without obtaining warrants.

Status quo has always been the name of the game. While these powers may experience periodic resistance, at the end of the day both parties (not counting those whose opposition has been loud and sustained) want the Executive Branch to have these powers available. Even if it sucks that their opponents are presiding over them at the moment, the next election could swing power the other way, giving them the opportunity to helm the USS Surveillance. As long as surveillance authorities continue to be politically useful, we can expect the same sort of futile, often meaningless pushing and pulling the next time they’re up for renewal.

Filed Under: backdoor searches, chuck schumer, data brokers, eo 12333, fbi, fisa, fisc, government surveillance reform act, jim jordan, mass surveillance, mike lee, nsa, ron wyden, section 702, surveillance, warren davidson, zoe lofgren

Supreme Court Denies Cert To NSA Case, Allows State Secret Privilege To Roll On Unaltered

from the press-F-to-escape-lawsuit dept

While we’re waiting to see if the Trump-stocked Supreme Court is going to end the internet as we know it, the nation’s top court has been rejecting, without comment, other essential cases that really could have used another set of judicial eyes.

On Wednesday, we covered one of the Supreme Court’s passes — this one involving parody, police, and qualified immunity. The Sixth Circuit granted immunity to Parma, Ohio police officers who raided a local man’s house, seized a bunch of electronics, and arrested him for the supposed crime of “disrupting police service” — all because he had created a parody Parma PD Facebook page that announced local cops were driving around in a van offering abortions and hosting “Pedophile Reform” events.

Most people saw it for what it was: not particularly subtle satire. The officers, however, weren’t laughing, so they decided to violate the page creator’s First Amendment rights. The Appeals Court took two swings at this one, the first one denying immunity because of the obvious First Amendment violations. For some reason during the second review, the judges reversed course and decided there was just enough probable cause to allow the officers to walk away from the suit. The Supreme Court, by denying certification, said basically the same thing: it’s ok for cops to engage in obvious First Amendment violations as long as there’s some law laying around that might very tenuously support an arrest warrant.

The same order list [PDF] contains another rejection by the Supreme Court that’s only going to encourage more dubious government behavior. In the list of things the Supreme Court can’t be bothered to review is the long-running Wikimedia v. NSA lawsuit — one prompted by the Snowden leaks that sought to hold the government accountable for warrantless domestic surveillance. (h/t Jon Brodkin/Ars Technica)

“Certori denied” is all the order says. With those two words, the federal government is allowed to continue chanting “state secrets” any time it wishes to exit a lawsuit over its surveillance activities. Despite Wikimedia offering up one of the NSA’s own documents — one that appeared to show the online, crowd-sourced encyclopedia was one of the agency’s many, many targets — the Fourth Circuit Appeals Court decided the NSA’s national security work was too important to allow further examination, much less a ruling in favor of the surveilled.

That terminates a lawsuit that was imitated nearly eight years ago. The denial makes it far less likely any current or future lawsuits over bulk domestic surveillance will survive judicial review because there is currently no circuit in the country willing to wholly reject the government’s state secrets privilege, even when evidence appears to show the government has engaged in illegal surveillance. What could have been a chance to limit the invocation of government secrecy to dodge litigation has been discarded without comment by this Supreme Court. That means the government wins without having to show its cards, even after the plaintiffs ante’d up on every litigation round.

Given the amount of time and money it takes to challenge the federal government in court, this rejection is going to deter victims of unlawful surveillance from taking their case to court. And that works out just fine for the Executive Branch, which historically hasn’t seen much in the way of checks and balances from an entity explicitly created to do exactly that.

Filed Under: about collection, ed snowden, mass surveillance, nsa, section 702, supreme court, surveillance, upstream, upstream collection
Companies: aclu, wikimedia

New Book Says NSA Pressured GCHQ To Shut Down Publication Of Snowden Leaks By UK Journalists

from the unexpected-but-also,-sadly,-unsurprising dept

A new book written by journalist Richard Kerbaj, detailing the history of the so-called “Five Eyes” surveillance collaboration between the NSA and surveillance agencies in the UK, Australia, Canada, and New Zealand, is revealing a few more postscripts to the Ed Snowden story.

Snowden’s first leak appeared nearly a decade ago. Since then, spy agencies have been reformed, sued, discussed heavily, and, ultimately, emerged largely unscathed.

The new book contains a couple of revelations that don’t appear to previously have been published. Perhaps the most shocking (but maybe not all that shocking) is the apparent fact that NSA applied pressure to its UK counterpart in hopes of preventing UK journalists from committing journalism.

The US National Security Agency (NSA) tried to persuade its British counterpart to stop the Guardian publishing revelations about secret mass data collection from the NSA contractor, Edward Snowden, according to a new book.

Sir Iain Lobban, the head of Government Communications Headquarters (GCHQ), was reportedly called with the request in the early hours of 6 June 2013 but rebuffed the suggestion that his agency should act as a censor on behalf of its US partner in electronic spying.

The head of GCHQ felt comfortable rejecting the NSA’s request to somehow stop publication of the first Snowden leaks. But it wasn’t so resistant a few days later, when its own government apparently talked it into showing up at The Guardian’s offices and forcing employees to destroy hard drives that supposedly contained leaked NSA documents.

What’s not shocking about this is that the NSA would have likely done anything to stop the leaks from being published, especially if it could persuade a third-party located in a different country to apply pressure. That would free it from legal liability and allegations of rights violations and make another spy agency look like it was the one that couldn’t handle the pressure and pulled the trigger on an outrageous attempt to save itself at the expense of journalistic freedom.

The NSA’s supreme self-interest is further exposed in the book. NSA officials kept the agency’s closest so-called “partner” in the dark about the source of the leaks, allowing GCHQ to find out the name of the source the same time the rest of us not employed by the NSA found out.

Kerbaj reports that the US-UK intelligence relationship was further strained when the head of the NSA, Gen Keith Alexander, failed to inform Lobban that the Americans had identified Snowden, a Hawaii-based government contractor, as the source of the stories, leaving the British agency investigating its own ranks in the search for the leaker. GCHQ did not discover Snowden’s identity until he went public in a Guardian interview.

Yikes. Apparently, the NSA thought this was the best solution to its own problem. Making matters worse, Ed Snowden’s outing of himself further enraged GCHQ officials, who could not believe a mere government contractor (rather than an official NSA employee) had access to this wealth of classified information.

Despite their differences, the spy agencies remain united. They both agree the public shouldn’t know any more than they’re willing to officially release about spy programs that inadvertently or deliberately target citizens. They will both continue to go on joint fishing expeditions, pulling communications and data from offshore cables to remain out of reach of local laws. And presumably, they both still agree Snowden is the actual villain here, no matter how often they’ve ignored rights and regulations to engage in spying. But hopefully they both realize history will ultimately vindicate Snowden while the jury remains out on the effectiveness of counterterrorism programs that involve dragnet collections.

Filed Under: censorship, ed snowden, gchq, keith alexander, mass surveillance, nsa

Wikimedia, ACLU, Knight Institute Ask Supreme Court To Hear Challenge Of NSA Bulk Surveillance

from the remember-the-NSA? dept

More than nine years of news cycles ago, the initial Snowden leak dropped. The next few years were filled with lawsuits, extensive news coverage, reform efforts (some better than others), the unplanned retirement of one bulk collection program, and an uptick in public outcry against large-scale government surveillance programs.

Nearly a decade later, the NSA’s ability to make headlines has vanished, replaced by surveillance tech sold by private companies and deployed by a number of known human rights abusers. The public still has some outcry left in it, but most of it is local, directed at surveillance tech deployed by law enforcement.

But the legal battle against NSA bulk surveillance of internet activity continues. The Wikimedia Foundation (along with the ACLU and Knight Institute) sued the NSA in May 2015, using evidence gleaned from multiple Snowden leaks. The lawsuit dealt with the NSA’s “upstream” collections: internet data and communications pulled from backbone fiber optic cables.

That case was rejected by the district court seven months later. The court said Wikimedia (and its other lawsuit partners) did not have standing to bring the case since they could not demonstrate they were targets of potentially-unlawful surveillance. A leaked NSA presentation appeared to show that Wikimedia was one of the NSA’s data acquisition targets, but, thanks to the secrecy surrounding all things related to national security, the Foundation could not definitively show it had been affected by upstream surveillance.

Six years (and two reviews) later, the Fourth Circuit Appeals Court rejected the lawsuit again. The first pass (in 2017) had revived the lawsuit, disagreeing with the lower court on the standing issue. This pass said Wikimedia et al likely could show standing but none of that mattered because the state secrets arguments presented by the government prevented the court from reviewing the suit.

What the remaining plaintiffs are asking the Supreme Court to review is the boundaries of the government’s “state secret privilege.” The plaintiffs argue in their brief [PDF] that this privilege shouldn’t allow the government to prevent court oversight of surveillance programs affecting millions of Americans. And it shouldn’t allow the government to ignore that plenty of its “state secrets” are no longer secret, thanks to leaks from Snowden and other whistleblowers.

It argues the government should have to prove its case, one way or the other, without relying on the invocation of this privilege to avoid any judicial examination of its claims and defenses. As the brief notes, the government can still present evidence in camera (privately and solely to the presiding judges), thus preventing sensitive information from being made public. And, no matter what the judges decide, the court can either move the case forward or dismiss it without making this information public. Redaction is still a thing, as the government seems to conveniently forget.

Everything it normally uses to tilt the scale in its favor during lawsuits and prosecutions (evidence presentations that do not include the other parties, extensive redactions) was somehow ignored in NSA-targeting lawsuits, presumably because the “state secret” privilege is so much more effective. The plaintiffs are simply asking the government to show its work. Whether or not it has to show it to the plaintiffs or the general public is beside the point. But courts shouldn’t simply abandon all efforts to examine claims just because the government says it doesn’t want to talk about it.

Filed Under: bulk surveillance, mass surveillance, nsa, state secret privilege, state secrets, supreme court, upstream
Companies: wikimedia

Secretive Private Company Shows No One — Not Even The NSA — Is Immune From Always-On Surveillance

from the if-you-like-spying,-you-should-like-being-spied-on-right? dept

In recent months, a lot of attention has been paid to private companies who assist governments with surveillance. Most of this has been focused on companies like Clearview (a company that scrapes the public web for data to sell to its customers) and NSO Group (an Israeli company that sells powerful cell phone exploits to a variety of human rights abusers). Other reports have focused on data brokers who use info harvested from phone apps to provide location data to US law enforcement, allowing them to circumvent the protections erected by the Supreme Court’s Carpenter decision.

What’s been exposed by security researchers and investigative journalists is only the tip of the iceberg. Governments have a hunger for data and a desire to convert the ubiquity of smartphones into actionable intel.

And that’s where things get even more sketchy. We assume our respective governments will respect rights and engage in good faith dealings with companies offering unfettered access to devices and data.

Our assumptions are erroneous. Governments, for the most part, don’t care about the citizens they serve. And they sure as hell don’t care about people located beyond their borders — people they assume have no natural rights who can be targeted with a minimum of discretion and oversight.

More evidence of corporate America’s and the US government’s unwillingness to give a shit about the negative side effects of unfettered domestic surveillance has arrived courtesy of Sam Biddle and Jack Poulson of The Intercept.

A company with a nonexistent web footprint is promising the US government new means of warrantless surveillance — and it’s doing so by leveraging location data harvested from any source possible. There’s a new war underway and, despite the US’s lack of direct involvement, a private company is selling the US government on tech that will allow it to monitor the war via location data purchased from Twitter.

According to Brendon Clark of Anomaly Six — or “A6” — the combination of its cellphone location-tracking technology with the social media surveillance provided by Zignal Labs would permit the U.S. government to effortlessly spy on Russian forces as they amassed along the Ukrainian border, or similarly track Chinese nuclear submarines.

Twitter may have made efforts to exclude government agencies from directly accessing its data firehose but it isn’t quite as proactive when it comes to private companies who sell this data to government agencies. Moderating content is impossible. Moderating firehose access isn’t easy either, especially when third parties aren’t honest about what they’re doing with this data.

The twist in this case is how Anomaly Six demonstrated its social media-leveraging prowess: it turned secretive US government employees into targets.

To prove that the technology worked, Clark pointed A6’s powers inward, spying on the National Security Agency and CIA, using their own cellphones against them.

Do you want to know more about Anomaly Six? Good luck. The only thing on its website is an email address — one linking to an account that presumably ignores pesky questions from journalists and is only responsive to email addresses linked to upper levels of federal agencies.

At best, Anomaly Six appears to be another option for location data that allows the government (federal, local) to dodge the warrant requirement enacted by the Supreme Court. At worst, it’s the interceptor of multiple firehoses that allow government agencies to convert social media use into real-time tracking of citizens’ movements and activities.

Social media services are the attack vector, as a recording obtained by The Intercept points out.

According to audiovisual recordings of an A6 presentation reviewed by The Intercept and Tech Inquiry, the firm claims that it can track roughly 3 billion devices in real time, equivalent to a fifth of the world’s population. The staggering surveillance capacity was cited during a pitch to provide A6’s phone-tracking capabilities to Zignal Labs, a social media monitoring firm that leverages its access to Twitter’s rarely granted “firehose” data stream to sift through hundreds of millions of tweets per day without restriction.

Laws and court precedent limit what the government can do. Anomaly Six asks why be limited by laws and precedent? Just get what you want from third parties, act on the intel, and rest assured that the gray area that stands between citizens and the government will almost always result in favorable rulings for government investigators.

The tools provided by this company, which apparently has access to the Twitter firehose, allow clients to drop a dragnet on worldwide Twitter usage, and track relationships between Twitter accounts, utilizing the location data to see what other accounts were in the area and who targeted users interacted with.

Not only is this company apparently circumventing restrictions on US law enforcement, it’s allegedly violating agreements private companies like A6 make when purchasing firehose access from Twitter.

The source also asserted that Zignal Labs had willfully deceived Twitter by withholding the broader military and corporate surveillance use cases of its firehose access.

As the Supreme Court has noted in decisions related to the Fourth Amendment and the “reasonable” expectation of privacy, sharing something with a private company is not the same thing as approving of carte blanche access by government agencies. Anomaly Six is operating outside of Fourth Amendment protections and citizens’ expectations about how their data will be handled. Sooner or later, this is going to cost the government some convictions, if not actual money. But, for now, it’s just (government) business as usual — business the government apparently feels comfortable conducting even when its contractor has demonstrated not even the most secretive federal agencies are beyond its reach.

Filed Under: cia, location data, mass surveillance, nsa, private data, surveillance
Companies: anomaly 6

FISA Court Says FBI May Be Abusing Surveillance Powers; Will Continue To Allow It To Abuse Surveillance Powers

from the but-the-court-has-made-it-clear-it's-disappointed dept

Reform efforts following the Snowden leaks led to some minor improvements at the FISA Court. The USA Freedom Act gave the court permission to allow someone to present the side of the surveilled from time to time and introduced some reporting requirements that allowed Americans to see just a bit more about how their surveillance tax dollars were spent.

But if anything is going to change the way America’s surveillance agencies perform their duties, it’s going to be up to the FISA Court, which can reject requests and shut down surveillance programs until they’re fixed. The Section 215 collection of phone records may have reached an early end-of-life after the untargeted bulk collection of phone records was banned, but other surveillance authorities continue unaltered. The one that leads to most surveillance abuses is one the court can’t seem to bring under control: Section 702.

This is supposed to be surveillance of foreign national security targets, but agencies with access to 702 collection far too routinely use this as a backdoor to American’s communications. And nothing about that has changed, eight years down the road from the Snowden leaks. A newly declassified decision [PDF] from the FISA Court shows the court is still willing to overlook egregious abuses of this authority to spy on Americans.

Here’s the EFF’s summary of last November’s decision — one made public late last month by the FISA Court.

[T]he FISC again found that a series of overly complex but still ultimately swiss cheese agency protocols — that are admittedly not even being followed — resolve the Fourth Amendment problems caused by the massive governmental seizures and searches of our communications currently occurring under FISA Section 702. The annual review by the FISC is required by law — it’s supposed to ensure that both the policies and the practices of the mass surveillance under 702 are sufficient. It failed on both counts.

The key part of this summary is this: “admittedly not being followed.” Even when the government admits it’s violating rights, the FISA Court says that’s ok… as long as the government admits it. Candor is appreciated, but it would be better if the government stopped violating its own protocols and the rights of Americans. That’s where the FISA Court should draw the line. But it doesn’t. And it hasn’t in years.

While the Court has expressed concerns about certain communications being swept up in 702 collections and disseminated to agencies who won’t use this information solely for national security purposes, it’s ok with that happening, so long as the NSA and other agencies check all the internal guideline boxes before violating the Fourth Amendment or, as is specifically discussed in this case, accessing privileged attorney-client communications.

The FISA Court says it has no problem with the NSA accessing privileged communications since it won’t be directly involved in any criminal cases. But it can see how other agencies without the same foreign-facing directives might end up in the possession of privileged conversations.

That being said, the government is admonished to guard against the possibility that NSA, in compliance with its procedures, might disseminate to FBI a report based on a privileged communication described in Section 5(c) of the NSA procedures (pertaining to a criminal charge in the United States) that, had the FBI obtained it through its own collection efforts, the FBI would be required to sequester with the Court under FBI Minimization Procedures…

Swell, but the Court goes on to say this isn’t something it’s going to worry about.

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

This kind of ignores the fact that prosecutions of foreign terrorists generally involve US courts. So even if the NSA isn’t exactly in the law enforcement business, its collections aid and abet domestic law enforcement agencies that do directly work with prosecutors and build criminal cases.

Marcy Wheeler’s summary of the FISA opinion is even more caustic. Here’s the bullet point breakdown of the Court’s acquiescence to the government’s claims that it’s really, really hard to keep the FBI from looking at stuff it’s not supposed to be looking at when it accesses 702 collections.

In short, the FBI keeps screwing up. And it keeps telling the FISA Court it will do better. Then the FBI doesn’t actually improve and the Court gives it a pass because it’s trying to try. The bulwark put in place to deter the government from abusing its powers and violating rights isn’t doing its job. It’s deciding that national security work is too important to subject to serious judicial scrutiny.

Filed Under: abuse, doj, fbi, fisa, fisa court, fisc, mass surveillance, nsa, section 702, surveillance, usa freedom act

Patriot Act Used By The FBI To Collect Internet Browsing Data, Contradicting Claims Made To Oversight

from the oh-no-this-must-be-the-first-time-the-IC-has-lied-to-its-oversight-[faints] dept

The NSA shut down its bulk phone records collection — authorized under Section 215 — after it became apparent it wasn’t worth the effort. Reforms put in place by the USA Freedom Act prevented the agency from collecting it all and sorting it out later. Instead, it had to approach telcos with actual targeted requests and only haul away responsive records. The NSA somehow still managed to overcollect records, putting it in violation of the law. The NSA hinted the program had outlived its usefulness anyway, suggesting it had far better collections available under other authorities that it would rather not subject to greater scrutiny.

But this didn’t end the government’s bulk records collections. It just ended the phone metadata program. The NSA still collects other records in bulk, including banking records and, oddly, books checked out by library patrons. The broad authority of Section 215 could be read to allow the government collect other records, like email metadata and internet activity. Reasoning that people voluntarily create records of their internet use by using third-party services to surf the web, the government hinted it could sweep these up just as easily as it had swept up call records.

The government’s attempt to collect internet history under this authority ran into some friction earlier this year when the Senate voted to block this collection. Senator Ron Wyden directly asked the director of national intelligence (DNI) to inform the Senate whether or not agencies under its purview had gathered internet use records under this authority. He received this answer.

In a Nov. 6 letter to Mr. Wyden, John Ratcliffe, the intelligence director, wrote that Section 215 was not used to gather internet search terms, and that none of the 61 orders issued last year under that law by the Foreign Intelligence Surveillance Court involved collection of “web browsing” records.

Wyden took this response to mean that implementing a ban on collection of internet history records could be put into place without negatively affecting any intelligence gathering activities. But when the New York Times pressed DNI John Ratcliffe on specifics, a new party inserted itself into the conversation: the DOJ. According to its response, the FBI had already done the thing the DNI had just told Sen. Wyden it hadn’t.

In fact, “one of those 61 orders resulted in the production of information that could be characterized as information regarding browsing,” Mr. Ratcliffe wrote in the second letter. Specifically, one order had approved collection of logs revealing which computers “in a specified foreign country” had visited “a single, identified U.S. web page.”

So, the FBI was collecting internet browsing records, albeit with an order that only targeted foreign users visiting one US web page. Still, this wasn’t what the DNI originally said to Sen. Wyden. This set Wyden off. Again. The supposedly honest answer he received in response to his questions wasn’t actually all that honest. As he pointed out in his statement, the belated admission raised questions about domestic surveillance and potential abuse of Section 215 authority to collect something the DNI said no one was collecting. And, if nothing changed, there was no guarantee the Intelligence Community wouldn’t talk itself into believing a collection of internet browsing data would be cool and legal.

“More generally,” Mr. Wyden continued, “the D.N.I. has provided no guarantee that the government wouldn’t use the Patriot Act to intentionally collect Americans’ web browsing information in the future, which is why Congress must pass the warrant requirement that has already received support from a bipartisan majority in the Senate.”

Previous attempts to erect a warrant requirement for the collection of internet data or search histories have failed to reach the president’s desk. This latest admission has refueled the fire to protect Americans (or visitors to American websites) from government overreach. Even if such a collection targets only foreign internet users, there’s no guarantee it won’t sweep up US citizens — like pretty much every other bulk collection has.

At this point, everything is up in the air. There’s a new president headed into office who might be more receptive to reform efforts, but he’s also the man who served the Obama Administration — one that wasn’t all that concerned about domestic surveillance until it became impossible to ignore the documents leaked by Ed Snowden. Even then, its response was tepid at best and it still allowed IC surveillance business to continue pretty much uninterrupted — something it used to justify extrajudicial killings based on little more than metadata. This needs to be fixed, but surveillance reform advocates still lack majority support. And the guy headed to the White House has never seemed all that concerned about surveillance abuses.

Filed Under: 4th amendment, browsing data, bulk records, doj, fbi, fisa, fisc, john ratcliffe, mass surveillance, metadata, nsa, odni, patriot act, ron wyden, section 215, usa freedom act, warrant