A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).
In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.
“We are very pleased that the court recognized the fatal constitutional shortcomings of the NSL statute,” said EFF Senior Staff Attorney Matt Zimmerman. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters — on its own authority and without court approval — to telecommunications companies demanding information about their customers.
The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.
Major announcements from the US and Canada today give a clear indication that the Anti-Counterfeiting Trade Agreement (ACTA) is coming back with a vengeance. ACTA is an agreement negotiated and signed by 11 countries, carrying intellectual property (IP) provisions that would negatively impact digital rights and innovation by ratcheting up IP enforcement measures beyond existing international standards. It will not take effect until six countries ratify the agreement, and Japan is so far the only country to have done so.
The FBI records the emails of nearly all US citizens, including members of congress, according to NSA whistleblower William Binney. In an interview with RT, he warned that the government can use this information against anyone.
Binney, one of the best mathematicians and code breakers in the history of the National Security Agency, resigned in 2001. He claimed he no longer wanted to be associated with alleged violations of the Constitution, such as how the FBI engages in widespread and pervasive surveillance through powerful devices called ‘Naris.’
This year, Binney received the Callaway award, an annual prize that recognizes those who champion constitutional rights and American values at great risk to their personal or professional lives.
RT: In light of the Petraeus/Allen scandal while the public is so focused on the details of their family drama, one may argue that the real scandal in this whole story is the power, the reach of the surveillance state. I mean if we take General Allen – thousands of his personal e-mails have been sifted through private correspondence. It’s not like any of those men was planning an attack on America. Does the scandal prove the notion that there is no such thing as privacy in a surveillance state?
William Binney: Yes, that’s what I’ve been basically saying for quite some time, is that the FBI has access to the data collected, which is basically the emails of virtually everybody in the country. And the FBI has access to it. All the congressional members are on the surveillance too, no one is excluded. They are all included. So, yes, this can happen to anyone. If they become a target for whatever reason – they are targeted by the government, the government can go in, or the FBI, or other agencies of the government, they can go into their database, pull all that data collected on them over the years, and we analyze it all. So, we have to actively analyze everything they’ve done for the last 10 years at least.
RT: And it’s not just about those, who could be planning, who could be a threat to national security, but also those, who could be just…
WB: It’s everybody. The Naris device, if it takes in the entire line, so it takes in all the data. In fact they advertised they can process the lines at session rates, which means 10-gigabit lines. I forgot the name of the device (it’s not the Naris) – the other one does it at 10 gigabits. That’s why they’re building Bluffdale [database facility], because they have to have more storage, because they can’t figure out what’s important, so they are just storing everything there. So, emails are going to be stored there in the future, but right now stored in different places around the country. But it is being collected – and the FBI has access to it.
RT: You mean it’s being collected in bulk without even requesting providers?
WB: Yes.
RT: Then what about Google, you know, releasing this biannual transparency report and saying that the government’s demands for personal data is at an all-time high and for all of those requesting the US, Google says they complied with the government’s demands 90 percent of the time. But they are still saying that they are making the request, it’s not like it’s all being funneled into that storage. What do you say to that?
WB: I would assume that it’s just simply another source for the same data they are already collecting. My line is in declarations in a court about the 18-T facility in San Francisco, that documented the NSA room inside that AST&T facility, where they had Naris devices to collect data off the fiber optic lines inside the United States. So, that’s kind of a powerful device, that would collect everything it was being sent. It could collect on the order over of 100 billion 1,000-character emails a day. One device.
RT: You say they sift through billions of e-mails. I wonder how do they prioritize? How do they filter it?
WB: I don’t think they are filtering it. They are just storing it. I think it’s just a matter of selecting when they want it. So, if they want to target you, they would take your attributes, go into that database and pull out all your data.
RT: Were you on the target list?
WB: Oh, sure! I believe I’ve been on it for quite a few years. So I keep telling them everything I think of them in my email. So that when they want to read it they’ll understand what I think of them.
RT: Do you think we all should leave messages for the NSA mail box?
WB: Sure!
RT: You blew the whistle on the agency when George W. Bush was the president. With President Obama in office, in your opinion, has anything changed at the agency, in the surveillance program? In what direction is this administration moving?
WB: The change is it’s getting worse. They are doing more. He is supporting the building of the Bluffdale facility, which is over two billion dollars they are spending on storage room for data. That means that they are collecting a lot more now and need more storage for it. That facility by my calculations that I submitted to the court for the Electronic Frontiers Foundation against NSA would hold on the order of 5 zettabytes of data. Just that current storage capacity is being advertised on the web that you can buy. And that’s not talking about what they have in the near future.
RT: What are they going to do with all of that? Ok, they are storing something. Why should anybody be concerned?
WB: If you ever get on the enemies list, like Petraeus did or… for whatever reason, than you can be drained into that surveillance.
RT: Do you think they would… General Petraeus, who was idolized by the same administration? Or General Allen?
WB: There are certainly some questions, that have to be asked, like why would they target it to begin with? What law were they breaking?
RT: In case of General Petraeus one would argue that there could have been security breaches. Something like that. But with General Allen – I don’t quite understand, because when they were looking into his private emails to this woman.
WB: That’s the whole point. I am not sure what the internal politics is… That’s part of the program. This government doesn’t want things in the public. It’s not a transparent government. Whatever the reason or the motivation was, I don’t really know, but I certainly think that there was something going on in the background that made them target those fellows. Otherwise why would they be doing it? There is no crime there.
RT: It seems that the public is divided between those, who think that the government surveillance program violates their civil liberties, and those who say, ‘I’ve nothing to hide. So, why should I care?’ What do you say to those who think that it shouldnt concern them.
WB: The problem is if they think they are not doing anything that’s wrong, they don’t get to define that. The central government does, the central government defines what is right and wrong and whether or not they target you. So, it’s not up to the individuals. Even if they think they aren’t doing something wrong, if their position on something is against what the administration has, then they could easily become a target.
RT: Tell me about the most outrageous thing that you came across during your work at the NSA.
WB: The violations of the constitution and any number of laws that existed at the time. That was the part that I could not be associated with. That’s why I left. They were building social networks on who is communicating and with whom inside this country. So that the entire social network of everybody, of every US citizen was being compiled overtime. So, they are taking from one company alone roughly 320 million records a day. That’s probably accumulated probably close to 20 trillion over the years.
The original program that we put together to handle this to be able to identify terrorists anywhere in the world and alert anyone that they were in jeopardy. We would have been able to do that by encrypting everybody’s communications except those who were targets. So, in essence you would protect their identities and the information about them until you could develop probable cause, and once you showed your probable cause, then you could do a decrypt and target them. And we could do that and isolate those people all alone. It wasn’t a problem at all. There was no difficulty in that.
RT: It sounds very difficult and very complicated. Easier to take everything in and…
WB: No. It’s easier to use the graphing techniques, if you will, for the relationships for the world to filter out data, so that you don’t have to handle all that data. And it doesn’t burden you with a lot more information to look at, than you really need to solve the problem.
RT: Do you think that the agency doesn’t have the filters now?
WB: No.
RT: You have received the Callaway award for civic courage. Congratulations! On the website and in the press release it says: “It is awarded to those, who stand out for constitutional rights and American values at great risk to their personal or professional lives.” Under the code of spy ethics – I don’t know if there is such a thing – your former colleagues, they probably look upon you as a traitor. How do you look back at them?
WB: That’s pretty easy. They are violating the foundation of this entire country. Why this entire government was formed? It’s founded with the Constitution and the rights were given to the people in the country under that Constitution. They are in violation of that. And under executive order 13526, section 1.7 – you can not classify information to just cover up a crime, which this is, and that was signed by President Obama. Also President Bush signed it earlier as an executive order, a very similar one. If any of this comes into Supreme Court and they rule it unconstitutional, then the entire house of cards of the government falls.
RT: What are the chances of that? What are the odds?
WB: The government is doing the best they can to try to keep it out of court. And, of course, we are trying to do the best we can to get into court. So, we decided it deserves a ruling from the Supreme Court. Ultimately the court is supposed to protect the Constitution. All these people in the government take an oath to defend the Constitution. And they are not living up to the oath of office.
Despite renewed criticism from both parties in Congress that domestic drones pose a privacy danger to US citizens—and a report from its own Inspector General recommending to stop buying them—the Department of Homeland Security (DHS) has indicated it wants to more than double its fleet of Predator drones used to fly surveillance missions inside the United States.
Yesterday, California Watch reported that DHS signed a contract that could be worth as much as $443 million with General Atomics for the purchase up to fourteen additional Predator drones to fly near the border of Mexico and Canada. Congress would still need to appropriate the funds, but if they did, DHS’ drone fleet woud increase to twenty-four.
While many people may think the US only flies Predator drones overseas, DHS has already spent $250 million over the last six years on ten surveillance Predators of its own. Customs and Border Protection (CBP)—a division of DHS—uses the unmanned drones inside the U.S. to patrol the borders with surveillance equipment like video cameras, infrared cameras, heat sensors, and radar.
They say the drones are vital in the fight to stop illegal immigrants, but as EFF reported in June, the DHS Inspector General issued a report faulting DHS for wasting time, money, and resources using drones that were ineffective and lacked oversight. The Inspector General chastised the agency for buying two drones last year despite knowing these problems and recommended they cease buying them until the problems could be fixed.
Perhaps worse, DHS is also flying Predator drone missions on behalf of a diverse group of local, state, and federal law enforcement agencies for missions beyond immigration issues. We know they have lent the drones out to the county sheriff’s department in North Dakota and the Texas Rangers, among others, but unfortunately, we don’tknow the full extent DHS lending program. DHS, as is their custom, is keeping that information secret.
In response, last month EFF sued DHS under the Freedom of Information Act demanding answers about how and why it loans out its Predator drones to other law enforcement agencies across the country. EFF’s lawsuit asks for the records and logs of CBP drone flights conducted in conjunction with other agencies.
These drones pose a multitude of privacy concerns to all Americans, as the Congressional Research Service (Congress’ non-partisan research arm) detailed in this comprehensive report on domestic drones and the Fourth Amendment. The report explains drones can be equipped with, among other capabilities, facial recognition technology, fake cell phone towers to intercept phone calls, texts and GPS locations, and in a few years, will even be able to see through walls.
Despite these concerns, DHS has not publicly issued any privacy rules to make sure drones do not spy on US residents in border states going about their daily lives. In fact, at a Congressional hearing on the subject, DHS refused to send anyone to testify, leading both parties to criticize their absence.
The booming drone industry, which has announced a PR campaign in an attempt tamp down the public’s privacy concerns, is quick to point out that these police drones—which cost anywhere from under $100,000 to $1 million—are smaller than Predators and do not have the same flight time, so police would not be able to surveil Americans for hours or days at a time like Predator drones could. Yet as the technology advances rapidly and becomes cheaper every year, smaller drones will soon be able to fly for an extended time period as well.
Several members of Congress have commendably introduced bills that would protect the privacy of Americans and increase transparency surrounding their use. These members, who voted for increased drone use in February but have recently expressed second thoughts, should call DHS representatives before Congress to explain their position. The American people deserve answers about to whom Homeland Security is loaning its drones, how DHS plans on protecting Americans’ privacy, and why they even need any more, given they are misusing the drones they already have.
Mini-drones are being tested in Oklahoma withing the framework of a program called “Robotic Aircraft for Public Safety,” indicating that small spy planes will be used to keep tabs on Americans in the near future. The drones are said to be used for ventures like “law enforcement operations, search and rescue, and fire and hazardous material spill response” and will fly for 30 minutes to two hours at a time, weighing around 25 pounds so they can be launched by hand. However those devices are reportedly set to spy on the public. Trevor Timm of the Electronic Frontier Foundation joins RT’s Liz Wahl for more.
The Global Hawk, an unmanned aerial vehicle (UAV) in flight. (AFP Photo)
Don’t be surprised if you catch a federal fleet of sneaky spy drones soaring over your head in the near future, but don’t be too terrified — it’s all in the name of public safety.
The US Department of Homeland Security is asking the makers of small unmanned aerial vehicles to submit their crafts for consideration as the agency ramps up the construction of a full-fledged surveillance state across America. The DHS plans to soon conduct drone tests over the Fort Sill, Oklahoma US Army base, and they’re already soliciting spy planes from the private sector so they can select what kind of UAV to use.
According to a request for information published on the Federal Business Opportunities website recently, the DHS is determined to begin drone tests over the military base soon and is seeking submissions from drone makers that don’t mind making a few bucks by having their products put into the US airspace to conduct sweeping surveillance.
The Borders and Maritime Security Division of the DHS “will conduct flight testing and evaluation of airborne sensors and small unmanned aerial systems,” the request reads, and now invites vendors to submit drones to be tested “under a wide variety of simulated but realistic and relevant real-world operation scenarios.”
The solicitation says that drones will be evaluated to see how well they perform law enforcement operations and conduct search and rescue missions, but once a craft is handed over to the DHS then the details will be put under lock and key. Specifically, the call for work says, “the information within each test report will be classified as For Official Use Only, and will not be shared with the general public.”
Given that the department has already addressed the issue of acquiring drones to give the DHS a better eye of domestic doings, though, those law enforcement operations in question could very well transcend away from legitimate uses and quickly cause civil liberty concerns from coast-to-coast.
Homeland Security Janet Napolitano told a House Committee panel in July that the DHS was “looking at drones that could be utilized to give us situational awareness in a large public safety [matter] or disaster” and the next piece of the puzzle is already being put into place. With their latest solicitation, the DHS acknowledges that it is specifically testing a “Robotic Aircraft For Public Safety,” but the components necessary to be considered suggest that any drone adopted by the agency will be brought in for sweeping surveillance.
The solicitation request requires that all drones be equipped with Electro-Optical/Infra-Red sensors, as well as the technology to sniff out certain chemicals from thousands of feet from above. The UAV must also have an integrated laser designator, can be hand-launched by a single person and must be able to be remotely managed by a pilot with only one day of training.
The Federal Aviation Administration is working towards putting the finishing touches on rules and regulations for widespread domestic drone use, and the agency expects as many as 30,000 UAVs will be in America’s airspace by the decade’s end.
WASHINGTON (AP) – The Supreme Court is leaving in place a federal law that gives telecommunications companies legal immunity for helping the government with its email and telephone eavesdropping program.
The justices said Tuesday they will not review a court ruling that upheld the 2008 law against challenges brought by privacy and civil liberties advocates on behalf of the companies’ customers. The companies include AT&T, Inc., Sprint Nextel Corp. and Verizon Communications Inc.
Lawsuits filed by the American Civil Liberties Union and Electronic Frontier Foundation accused the companies of violating the law and customers’ privacy through collaboration with the National Security Agency on intelligence gathering.
The case stemmed from surveillance rules passed by Congress that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.
(NaturalNews) An alliance of groups who advocate for freedom and privacy have joined to push U.S. lawmakers into acknowledging so-called digital rights of all Americans by signing a new Declaration of Internet Freedom.
The declaration, which has been supported by groups like the American Civil Liberties Union, Amnesty International and the Electronic Frontier Foundation, features five simple principles (not 2,700 for keeping a free and open Internet. They are:
Expression: Don’t censor the Internet.
Access: Promote universal access to fast and affordable networks.
Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.
Innovation: Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users’ actions.
Privacy: Protect privacy and defend everyone’s ability to control how their data and devices are used.
The EFF, in a statement, said support for the effort was a vital part of its strategy, and the strategy of others, to keep lawmakers in the U.S. and around the world out of the business of regulating the Internet.
An election issue
“For too long in the U.S., Congress has attempted to legislate the Internet in favor of big corporations and heavy-handed law enforcement at the expense of its users’ basic Constitutional rights,” the statement said. “Netizens’ strong desire to keep the Internet open and free has been brushed aside as naive and inconsequential, in favor of lobbyists and special interest groups. Well, no longer.
The statement referenced an earlier effort by concerned groups and citizens to halt an onerous piece of Internet regulation known as the Stop Online Piracy Act, or SOPA. As is usually the case, the bill seemed reasonable: help protect electronic copyrights. But in reality, what it would have done was allow broad censorship across the wide, wide Web, and led to a dampening of innovation while threatening Internet security. At one point, its passage was considered a foregone conclusion by the industry, but a grassroots uprising stopped the bill cold.
“Why were Internet users so empowered for the first time? For one reason, Internet freedom now affects virtually all of the American public – young and old – given the web’s importance to everyone’s daily life,” the EFF said, noting that the uproar was bipartisan – groups and elected officials on both sides of the political aisle banded together to stop SOPA.
The group, as well as others who have signed on, believe that now, Internet freedom has become “an election issue, and candidates for elected office must treat it as such.”
Though freedom lovers got a victory in the SOPA – and subsequent – legislative failures, the assault on controlling the World Wide Web continues. And, in fact, most observers think it has actually accelerated.
More attempts to regulate coming
In fact, the bills are actually being recycled into newer versions of the same thing – and shelved, for the time being, until backers feel the political climate is right to reintroduce them.
Former U.S. Sen. Chris Dodd, who became head of the Motion Picture Association after he left office, told the Washington Reporter in April he was “confident” about conversations between Hollywood and Silicon Valley to revive SOPA.
“Between now and sometime next year [after the presidential election], the two industries need to come to an understanding,” he said, mysteriously.
When asked if that meant negotiations were proceeding apace, Dodd said, ” I’m confident that’s the case, but I’m not going to go into more detail because obviously if I do, it becomes counterproductive.”
Moreover, federal agencies – including the FBI – want current laws changed or expanded in order to allow more monitoring and wiretapping of the Web.
All of which proves the point that defense of freedom requires eternal vigilance.
Privacy advocates this week said they are dismayed, but not surprised about a New York Criminal Court judge’s decision ordering Twitter to hand over all the data it has on an Occupy Wall Street protester being investigated for disorderly conduct.
In an 11-page ruling, Judge Matthew Sciarrino denied Twitter’s motion to quash a subpoena from New York City prosecutors seeking the deleted tweets, email addresses, IP address and other information of Twitter user Malcolm Harris, who was arrested last year in connection with the New York OWS protests.
The ruling marked the second time the same court has rejected arguments that the data being sought by prosecutors is constitutionally protected and can only be obtained via a search warrant. Harris had earlier sought to quash the subpoena.
The court rejected Harris’ claims because the data sought by prosecutors belonged to Twitter, not him. The court asserted that Harris therefore had no standing to challenge the subpoena.
In filing its motion to quash the subpoena, Twitter contended that under its terms of service, the data belonged to Harris.
Twitter argued that taking away Harris’ ability to challenge the subpoena unfairly puts the onus on Twitter to legally defend its users rights.
Twitter and Harris both contended the data being sought was protected under Fourth Amendment prohibition of unreasonable search and seizure. Thus, Twitter maintained that prosecutors needed to obtain a search warrant before they could ask for the data to be handed over.
In dismissing the arguments, Judge Sciarrino held that the Fourth Amendment didn’t apply in this case because there would be no physical intrusion into Harris’ Twitter account.
“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world,” he wrote.
Tweeting is very different from a private mail, private chat or other forms of private online communications, Sciarrino wrote.
“Those private dialogues would require a warrant based on probable cause in order to access the relevant information. ” The same is not true of public tweets, he noted.
The ruling elicited predictable groans from privacy rights groups. “We think the judge missed the point on the privacy analysis,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC).
“It’s one thing for the police to overhear a person shout an incriminating statement. We agree there would be no expectation of privacy” in those situations, Rotenberg said. “But when the police go to a communications service provider and demand that the company turn over records of a customer, that is a very different scenario.”
In an amicus brief filed with the court, EPIC and other groups, including the Electronic Frontier Foundation and the American Civil Liberties Union, noted that prosecutors were not asking just for the content of Harris’ tweets — the subpoena also sought the date, time, and IP address Harris used each time he logged into his Twitter account over a three-month period.
The privacy groups contended that seeking such information without a warrant is a violation of Harris’ First and Fourth Amendment rights.
The judge’s decision to order Twitter to hand over the information is a dissappointment, said EFF staff attorney Hanni Fakhoury in a blog post Wednesday.
“While we’re not surprised the judge didn’t change his mind, we’re still disappointed to see the court failing to appreciate the privacy concerns at stake.” Fakhoury said. “We think the court is behind the times on this important issue.”
Chris Hoofnagle, director of information privacy programs at the Berkeley Center for Law & Technology, said that courts, in general, have been unwilling to burden criminal procedure with First Amendment speech issues.
“I did not find the outcome surprising,” Hoofnagle said. “Criminal investigation routinely involves records that are revealing of speech and associational activity. “
Behnam Dayanim, an attorney with Axinn Veltrop & Harkrider’s litigation and regulatory group said that the verdict came as no surprise to him for different reasons.
“To me, the proposition that just because a tweet might be considered property of Twitter it is therefore protected under the First Amendment and Fourth Amendment, is a stretch,” Dayanim said. “Just because something is property of your doesn’t mean that the government isn’t entitled to obtain it through a court ordered subpoena,” he said.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, send e-mail to jvijayan@computerworld.com or subscribe to Jaikumar’s RSS feed .
The evidence that the US is pursuing to have Wikileaks founder Julian Assange extradited to America is becoming more obvious. Assange still awaits in the Ecuadorian Embassy in London for political asylum to South America, but while he remains trapped, democratic Senator Dianne Feinstein has issued a statement to an Australian newspaper demanding that the whistleblower be prosecuted. Trevor Timm, an activist for the Electronic Frontier Foundation, joins us with more on the hunt for Assange.
Privacy advocates this week said they are dismayed, but not surprised about a New York Criminal Court judge’s decision 
