Two Important Articles Re: Surveillance of President Trump and other Americans

These two articles (from Friday March 24) really help to better explain many of the complex issues involved in President Trump’s “wiretapping” claims.

The first is a great interview with former FBI Agent Coleen Rowley by Dennis J. Bernstein. The second is an awesome surveillance primer by Charlie Savage.

Surveillance State Goes After Trump
By Dennis J Bernstein for Consortium News

* Although Trump’s accusations of Obama personally ordering Trump tower to be “wiretapped” remain unsubstantiated, it’s only technically incorrect because he used the word “wiretapped” which implies specifically tapping a phone land line, as opposed to “monitoring” all communications of a target, which includes cell phone communications, email, and anything else.

* So, in a more general sense, Trumps calls WERE picked up, while government agencies were “monitoring other targets.”

* To be clear, Rowley said “I think Trump is vindicated” on this issue. So, although Trump may have been confused about the correct term to use, the essence of what he was saying was true; his communications were been intercepted. (As House Intelligence Chairman Devin Nunes has stated: there is evidence of U.S. intelligence picking up conversations by Trump while monitoring other targets.)

* Also due to this technical difference between “wiretapping” and “surveillance” or the “monitoring” of the targets in question, FBI Director Comey was technically telling the truth when he said that they had found no evidence of the wiretapping mentioned in Trump’s tweets.

* Congressional Spying was actually the exact reason that the Foreign Intelligence Surveillance Act was created; as a result of the Frank Church Committee (created when Senator Frank Church found out he was being surveilled by the NSA).

* Looking back at history, flimsy Title III orders were used by FBI Director J. Edgar Hoover against Martin Luther King Jr.  (to hide microphones in his hotels), and they were based on guilt by association.

* These orders had “very little probable cause” and were usually “a paragraph or two alleging that an associate or a cousin of an associate was a communist.” These were the kinds of orders used to spy on Frank Church and others.

* With all this in mind, you would think that Congress would have considered the downsides to mass surveillance, but it looks like the last 30 years of congresspeople that came in forgot about the problem.

There are more points than this! You should read the whole thing :)

Second article:
Amid Trump Inquiry, a Primer on Surveillance Practices and Privacy

By Charlie Savage for the New York Times

* Incidental collection is standard operating procedure.

* The private information of Americans is routinely intercepted in this process.

* There are repositories of “raw” (unprocessed) emails and phone calls that are place into “repositories” that intelligence analysts can then query, looking for specific information relevant to what they are working on, using keywords or names.

* When writing surveillance-based reports for broader dissemination within the intelligence community, analysts are supposed to “minimize” any privacy intrusion into Americans, “masking” any names and private information.

* Minimization rules have exceptions for leaving the private information “unmasked” if it’s impossible to understand the foreign intelligence otherwise.

* “One issue of concern is the ‘backdoor search loophole’ – when officials search raw repositories of surveillance information intending to pull out and read any incidentally collected private messages of an American – especially when those messages were gathered without a warrant in the first place.”

* The FISA Amendments Act will expire at the end of 2017 unless congress enacts new legislation extending it.

There are more points than this! You should read the whole thing.

The First Amendment Protects Journalists From Revealing Sources, Period

A concerning development occurred during the congressional hearings today on Russian Interference in the Election (link goes straight to testimony): Trey Goudy (a member of the House Permanent Select Committee on Intelligence) implied that the FBI had somehow dropped the ball by not going after New York Times and Washington Post journalists for protecting their sources when publishing classified information in the public interest.

It was quite odd watching a room ponder the prospect of charging the press with criminal activity for what is considered standard journalistic First Amendment protected practice (of publishing classified information) as if it were some kind of allowable solution to what’s been going on with the current round of White House leaks.

This issue has already been decided on quite clearly by the Supreme Court in the Pentagon Papers case, United States v. New York Times, 328 F. Supp. 324, 329 (S.D.N.Y. 1971).

This has mostly to do with something Justice Gurfein referred to as a “cantankerous press.”

As Gurfein writes in his decision:

The First Amendment concept of a “free press” must be read in the light of the struggle of free men against prior restraint of publication. From the time of Blackstone it was a tenet of the founding fathers that precensorship was the primary evil to be dealt with in the First Amendment…

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know…it is not merely the opinion of the editorial writer or of the columnist which is protected by the First Amendment. It is the free flow of information so that the public will be informed about the Government and its actions.

These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of Government than freedom of expression in any form. This has been the genius of our institutions throughout our history. It is one of the marked traits of our national life that distinguish us from other nations under different forms of government.

Here’s Trevor Timm (Freedom of the Press Foundation) explaining this in a brief 1 1/2 minute video. This clip is from the upcoming film “From DeadDrop To SecureDrop.” (Transcription below):

 

 

Transcription:

The Supreme Court case that came out of the Pentagon Papers was one of the most important First Amendment cases of the twentieth century. It essentially is affirmed that newspapers in the United States have the constitutional right to publish information – even that the government considers “Top Secret” – that’s in the public interest, and that they cannot be censored, or what courts refer to as “the government can’t issue a ‘prior restraint.’

The opinion was written incredibly fast – from the start of the case where it went from the District court to the Supreme Court took only 13 days, which is incredibly fast. If you ever read the history of Supreme Court opinions, it usually takes years to get there. And so, all nine judges wrote separate opinions, but the core of the case still stands, which is that unless there are extreme extreme circumstances – which we have never seen in this country – that newspapers and journalists have the right to publish classified information. And because of this, we have learned so much more about what our government does behind closed doors.

Often, what they do, that is immoral and wasteful and illegal, we never would have known without this decision.

 

A Deeper Look Into President Trump’s Surveillance Claims

Stepping back for a moment from the extreme nature of Trump’s accusing President Obama of personally ordering Trump’s phone to be tapped, it looks like the surveillance itself might have taken place; and it could have taken place any number of ways.

Tapping Trump?

by Julian Sanchez for Just Security, offers a very helpful historical and legal analysis of the situation.

After a March 4th Trump tweet storm (Tweet 1, Tweet 2, Tweet 3, Tweet 4),  with varied accusations that Former President Obama was tapping his phone, Kevin Lewis (Obama’s spokesman) was quick to clarify:

“A cardinal rule of the Obama Administration was that no White House Official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is completely false.”

This seems to suggest that, if surveillance took place, that Trump himself, a U.S. citizen, was not the ordered target.

When a non-U.S. citizen is under surveillance, it could be as a result of FISA, provisions under the Patriot Act, or even the the NSA’s routine day to day surveillance powers, as outlined in Executive order 12333. (See the Washington Post’s  in NSA-intercepted data, those not targeted far outnumber the foreigners who are.)

So, it would seem that, once they communicate with a suspected foreign party, any and all U.S. citizens easily fall under one of these three umbrellas.

Sanchez calls this “reverse targeting,” and explains it in the Just Security article:

“In either event, there’s nothing here to suggest either the direct involvement of President Obama nor any clear indication of a violation of the law. If, however, the primary purpose of the investigation was to build a criminal case against U.S. persons in the Trump camp, then the use of FISA authorities to gather information by naming foreign entities sounds like “reverse targeting”—tasking collection on a foreign target when your real interest is a U.S. person with whom they’re communicating. That would be, to use the technical term, highly shady even if not unlawful.

Here is the complete analysis from the article (emphasis and bolding is my own):

Taking all these claims with the appropriate sodium chloride seasoning, what can we infer? First, contrary to what many on social media—and even a few reporters for reputable outlets—have asserted, the issuance of a FISA order does not imply that the FBI established probable cause to believe that any Trump associate was acting as an “agent of a foreign power” or engaged in criminal wrongdoing. That would be necessary only if the court had authorized direct electronic surveillance of a United States person, which (if we credit the BBC report) the FISC apparently declined to do.

Assuming the initial applications were indeed for full-blown electronic surveillance orders, then the fact that the FBI supposedly did name the Trump associates at first would suggest they may have thought they had such evidence, but one would expect the FISC to apply particularly exacting scrutiny to an application naming persons associated with an ongoing presidential campaign. An application targeting only foreign corporate entities—especially entities openly controlled or directed by the Russian government—would require no such showing, even if the FBI’s ultimate interest were in communications concerning those U.S. persons.

It’s worth noting here that, contra Trump’s claim on Twitter, none of the articles in question claim that phones were tapped. Indeed, it’s not even entirely clear that the order the FISC finally issued in October was a full-blown electronic surveillance warrant requiring a probable cause showing.

If the FBI was primarily interested in obtaining financial transaction records, corporate documents, and (depending on both the facts and the FISC’s interpretation of the FISA statute) perhaps even some stored e-mail communications, that information might well have been obtainable pursuant to a §215 “business records” order, which imposes only the much weaker requirement that the records sought be “relevant to an authorized investigation.” The BBC’s use of the word “intercept” to describe the investigators’ aim, as well as Mensch’s characterization of the order as a “warrant,” both suggest full-blown electronic surveillance, but reporters aren’t always particularly meticulous about their use of legal terms of art, and similarly, sources with indirect knowledge of an investigation may not be scrupulously exact about the distinction between an “order” and a “warrant.”

In either event, there’s nothing here to suggest either the direct involvement of President Obama nor any clear indication of a violation of the law. If, however, the primary purpose of the investigation was to build a criminal case against U.S. persons in the Trump camp, then the use of FISA authorities to gather information by naming foreign entities sounds like “reverse targeting”—tasking collection on a foreign target when your real interest is a U.S. person with whom they’re communicating. That would be, to use the technical term, highly shady even if not unlawful.

Thanks to the Patriot Act, however, FISA authorities may be used in investigations that have a “significant” foreign intelligence purpose, even if the “primary” purpose is criminal prosecution—a change from the prior standard imposed by the courts, which had required that foreign intelligence be the “primary” purpose of surveillance under the aegis of FISA, precisely to prevent authorities from evading the stricter requirements imposed by Title III, the statute that covers wiretapping for domestic criminal investigations.

Friday Feb 17 – 5:30-8 pm – Join EFF and the Internet Archive for an “Apple Pie Potluck and Constitutional Law Teach-In”

A set of nine blank, white picket placards attached to wooden stakes on an isolated background

Apple Pie Potluck and Constitutional Law Teach-In — Friday Feb 17th 5:30-9PM

EFF and other lawyers will lead a conversation about the current issues and threats in constitutional law. Focusing on specific sections and amendments we will talk about current cases on censorship, surveillance, search and seizure, and more.

Workshops on using encryption tools and maybe musical performances will accompany.
If you want to present, perform, or have other ideas, please email us.

When: Friday, February 17th 5:30pm-9pm (program 6-8)
Where: Internet Archive
300 Funston Ave. SF, CA 94118
Potluck-style: Please bring apple pie or other food
Reserve your free ticket here
Streamed via Facebook Live
Donations welcome

Lawyers Attending:

  • Cindy Cohn – Executive Director of EFF
  • Corynne McSherry – Legal Director of EFF
  • Stephanie Lacambra – Staff Attorney at EFF
  • Victoria Baranetsky – First Look Media Technology Legal Fellow for the Reporter’s Committee for Freedom of the Press
  • Geoff King – Lecturer at UC Berkeley, and Non-Residential Fellow at Stanford Center for Internet and Society
  • Bill Fernholz – Lecturer In Residence at Berkeley Law

For those who cannot attend in person, we will stream the event on Facebook Live, so make sure you’re following us on Facebook.

Brewster Kahle: Howl For Aaron Swartz

It’s never easy on January 11th. This year will be no exception.

Brewster Kahle recorded this in the Fall of 2015. Today is the first time it has been published.

Howl for Aaron Swartz

Written by Brewster Kahle, shortly after Aaron’s Death, on January 11, 2013.

Howl for Aaron Swartz
New ways to create culture
Smashed by lawsuits and bullying
Laws that paint most of us criminal

Inspiring young leaders
Sharing everything
Living open source lives
Inspiring communities selflessly

Organizing, preserving
Sharing, promoting
Then crushed by government
Crushed by politicians, for a modest fee
Crushed by corporate spreadsheet outsourced business development

New ways
New communities
Then infiltrated, baited
Set-up, arrested

Celebrating public spaces
Learning, trying, exploring
Targeted by corporate security snipers
Ending up in databases
Ending up in prison

Traps set by those that promised change
Surveillance, wide-eyes, watching everyone now
Government surveillance that cannot be discussed or questioned
Corporate surveillance that is accepted with a click

Terrorists here, Terrorists there
More guns in schools to promote more guns, business
Rendition, torture
Manning, solitary, power

Open minds
Open source
Open eyes
Open society

Public access to the public domain
Now closed out of our devices
Closed out of owning books
Hands off
Do not open
Criminal prosecution

Traps designed by the silicon wizards
With remarkable abilities to self-justify
Traps sprung by a generation
That vowed not to repeat
COINTELPRO and dirty tricks and Democratic National Conventions

Government-produced malware so sophisticated
That career engineers go home each night thinking what?
Saying what to their families and friends?

Debt for school
Debt for houses
Debt for life
Credit scores, treadmills, with chains

Inspiring and optimistic explorers navigating a sea of traps set by us
I see traps ensnare our inspiring generation
Leaders and discoverers finding new ways and getting crushed for it

Ortiz is Retiring – January 11 Approaching…

Be sure to tweet your January 11 events to us, so we can let everyone know about them.

Well, Carmen Ortiz is finally retiring:

From a Daily Beast article, that gets it about right (although it spells Aaron’s name wrong):

During her time in office, Ortiz came under fire for pursuing harsh charges in some high-profile cases, including that of internet activist Aaron Schwartz. Schwartz was accused of downloading free articles from an MIT archive, against terms of use. Ortiz’s office charged Schwartz with 13 felony accounts, which threatened up to 30 years in prison. Schwartz committed suicide before his trial. The incident prompted over 60,000 to accuse Ortiz of “overreach” and petition for her removal.

There is a rally going on at the Boston courthouse in memory of Aaron, from 3-6pm EST on the fourth anniversary of Aaron’s death, January 11, 2017.

Here’s more about Marty Gottesfeld, from ShadowProof’s Kevin Gosztola:

Wife Of Activist Jailed For Digital Sit-In Seeks Help From Trump

Dana and marty

 

From the article:

Gottesfeld was arrested in Miami in February last year and faces a conspiracy charge and charges of “intent to damage a protected computer,” which are offenses under the Computer Fraud and Abuse Act. If convicted, he faces up to 25 years in prison and could pay hundreds of thousands of dollars in restitution.

Carmen Ortiz, who zealously prosecuted Aaron Swartz until he committed suicide in 2013, is the federal prosecutor leading the effort to prosecute Gottesfeld.

“I’d like [Trump] to use his influence to get the charges dropped against Marty because of the nature of the whistleblowing, because Marty didn’t hurt anybody whereas the doctors at the hospital did hurt people and they’re not facing any charges,” Dana Gottesfeld, Marty’s wife, told Shadowproof in an interview.

She also would like Trump to support Justina’s Law, which she said is legislation that “would protect children that become wards of the state from medical testing that doesn’t benefit them.”

 

 

Lauri Love – A Call to Action to Friends in the US

As read at the Aaron Swartz Day Evening Event, on November 5, 2016, at the request of Noah Swartz                    Free Lauri Love Website

By Mustafa Al-Bassam (friend of Lauri)

Lauri Love is a computer scientist from the UK, who was a long-time friend of Aaron Swartz. He is facing extradition to the United States for various CFAA charges, including his alleged involvement in a series of online protests that followed Aaron’s persecution and untimely death. He is being pursued by the US criminal justice system for allegedly protesting abuses of that same system, with prosecutors in three US court districts accusing Mr Love of hacking into various government websites.

In July 2015, Lauri was arrested by UK officials on the request of the US government, who had issued several indictments and corresponding extradition warrants. The FBI and Department of Justice allege that Lauri has been involved in hacking into various governmental agencies, including the US Army, NASA, the Federal Reserve and the Environmental Protection Agency. Britain’s National Crime Agency had actually arrested Lauri two years before but never found enough evidence to charge him. Now he is facing extradition to face charges in the United States.

Lauri’s case bears very close resemblance to that of Gary McKinnon’s, who fought a 10 year battle against extradition to the US. Gary was accused of hacking into US military and NASA networks. Gary ultimately won after Home Secretary Theresa May blocked the extradition due to concerns over Gary’s mental health as he was diagnosed with Asperger’s Syndrome and battled with depression and anxiety.

Like Gary, Lauri is also diagnosed with Asperger’s Syndrome and suffers from depression and anxiety; he needs to be close to his family and needs health care that he would not be able to access in the US prison system. Human Rights Watch, reporting on the state of US prison conditions, has noted “disturbing delays in providing vital medical help” and “serious concerns about the overall quality of medical help for federal inmates.” I’m sure most of you are aware of the lack of adequate care in the US prison system, and those of you who have been following Chelsea’s case know how her recent suicide attempt resulted in being sentenced to solitary confinement. In the UK a suicidal inmate would instead be offered the help they require, rather than being punished. Lauri’s family has serious concerns about this as he has a long history of suicidal tendencies. If extradited, he would be thrust into a cell an ocean away from the support system that has sustained him.

On September 2016 a British Judge ruled in favor of extradition, passing the case to Secretary of State Amber Rudd. While Lauri can appeal to the High Court, the Secretary of State no longer has power to block the extradition on human rights grounds like in Gary’s case. This means that Rudd will have no choice to approve the extradition.

In light of this, and thanks to campaigning by the Courage Foundation and friends, 114 British Members of Parliament have recently signed a letter to Barack Obama to call on him to stop Lauri’s extradition. Support from the British public and politicians has been immense, but unfortunately there has been little attention bought to this case in the US, which is much needed.

If Lauri were to be extradited, even if he survived his time in prison awaiting trial, it’s likely that a sentence given to him by a US court would destroy his life. While in the UK it’s common for convicted hackers to return to a normal life within a few years, the US justice system could easily sentence Lauri to a nearly life long prison term, or fine him for an amount large enough that he would spend the rest of his life paying it back. His US charges would land him up to 99 years in prison.

I myself was threatened with extradition to the US by the FBI in 2011 due to my involvement in hacktivism. My case ultimately ended up being heard in the UK, and I ended up relatively unscathed having spent no time in jail, compared to my co-defendants in the US, including Barrett Brown and Jeremy Hammond, who are still in jail to this day. I do not wish for anyone else to become another victim of the disproportionate US justice system, including Lauri.

We call on friends in the US who are concerned about the unjust nature of the CFAA, the overly harsh US sentencing system and the mental health limitations of the US prison system to campaign and raise awareness for Lauri’s case. The US justice system has international consequences, and it would be extremely powerful if American citizens campaign in solidarity on behalf of international citizens in recognition of these harsh laws.

Please spread the word about Lauri’s case. You can find out more at freelauri.com. I hope that some of you will spend your time tonight talking about how to raise awareness for those, like Aaron, who find themselves at risk of being crushed under the US’s overly harsh, outdated, and misused hacking laws.

President Obama Should Give Chelsea Manning Time Served

ChelseaManning-TimeServedSoon after Chelsea Manning prepared her statement for this year’s Aaron Swartz Day, her legal appeal team launched a #timeserved campaign (link to official commutation petition), asking President Obama to commute her 35 year sentence.

 

There’s a petition at Whitehouse.gov that needs 100,000 signatures by December 14th.

As the November 14th announcement by Fight for the Future explains, Commuting Chelsea’s sentence makes sense for a number of reasons:

  • She has already been in prison for almost 7 years.
  • 11 months of that was in solitary confinement. (This was before she had ever been tried and convicted of any crimes.)
  • Chelsea’s 11 months in solitary confinement was particularly brutal.  2 months was spent in 105 degree temperatures in complete darkness, in a cage in a tent *in Kuwait). (Yes, literally, a cage inside of a tent. In the dark for two months straight.
  • For the next 9 months, spent in solitary confinement at Quantico, Virginia, she had to stare straight ahead at the wall all day. (Read this first hand account from Chelsea about her time in solitary confinement.
  • Since that time, she has been incarcerated for another 6 years.
  • This means that Chelsea has already served more time than any whistleblower in U.S. history.

She writes in her commutation statement that she decided to not accept a plea deal because she thought the court would sentence her fairly.  (Alas, she made a mistake in doing so, as it obviously did not sentence her fairly.)

Just last month, after initially disappearing for a week, her lawyers announced that she had been placed in solitary confinement as punishment for her suicide attempt last July.

As soon as she was placed in solitary confinement again, it was too much for her, and she attempted to take her own life again. (The Guardian provides this excellent account of medical experts decrying the use of solitary confinement for this purpose.)

Chelsea has now been told that she will soon be charged for the second suicide attempt, and will most likely receive more solitary confinement as punishment for it.

How long can this go on? Indefinitely, apparently.

If President Obama doesn’t commute her sentence, there is nothing to stop this pattern from repeating.

Chase Strangio, Chelsea’s attorney for her ACLU case,  has written a letter to President Obama asking him to commute Chelsea’s sentence. As he explains in the New York Times article, “I worry about the sustainability of her current conditions and her ability to keep fighting under these relentless abuses.”

Please sign the petition and help spread the word.

Resources:

Whitehouse.gov petition

Blog post from Fight for the Future announcing the #timeserved campaign

Official commutation application/petition

Chelsea’s medium post with her statement, from the application:

Chase’s Strangio, Chelsea’s ACLU attorney, writes a post to Obama

November 4-5, 2017