Category Archives: Surveillance Reform

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.

Cindy Cohn at Aaron Swartz Day 2015


Download mp4       Hi-res files of entire event
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Note: I’m including a full transcription at the bottom of this post. (Thanks to OpenTranscripts.org for their transcriptions of these talks.)

Quotes from Cindy’s Talk:

The Internet is going to be the means by which we do all the rest of the change that we need to do so badly in this world. And that I think there’s enough people now that we really have a movement, and we need to start thinking of ourselves as a movement, and we have to figure out what our next steps are…

Sitting here and listening to all the presentations tonight, seeing the amazing activity out there, seeing the tentacles of what Aaron was a part of in the early days, and in some ways the heart of, in the early days, become a movement. You guys, you’re a movement and thank you so much for doing this. So let’s figure out what our next fights are together and our work is together…

I think if people who want to honor Aaron Swartz do one thing with regard to Congress and then go back to coding, the one thing you should do is say “That law goes no further. It doesn’t get any worse and it doesn’t take any lives.”…

There is some good news in the state of California. We just passed, and we got Governor Brown to sign, a law called CalECPA, which requires the cops, the California state cops, to get a warrant before they go after your information stored with service providers…

It’s time for the legislature and the FBI to get over it. Crypto is here to stay, and all of the tools that we’ve talked about here tonight depend on the ability for people to have strong unbreakable crypto, and we need to stand up for it again. Watch the EFF web site. We’re going to keep talking about this, and you’ll see some causes…

I think we need to send a strong message to the White House that President Obama needs to come out and take a strong stand on crypto, not just say “we’re not going to come after crypto right now, but we may do something later” but to say, “No. Hell no. Americans deserve to have locks on their doors that don’t have backdoor entries for law enforcement.”…

And while the folks in Washington DC like to just wave their hands and say, “You geeks sort it out. Find a way to have a backdoor that only good guys can go in and bad guys can’t,” those of us who know about technology, and more importantly those of us who know about math, know that this is impossible…

I’m so happy to see so many projects being celebrated here that were created or inspired or legally defended by EFF. We’re going to continue to be the support for this community. One of the things that John Perry Barlow taught me years ago is that your rights aren’t given to you, your rights have to be taken. And we’re here today to continue to take our rights.

*** Complete Transcription Below***

Thanks so much for inviting me. When I took over as Executive Director of the EFF in April [2015], many people asked me, “Well, what do you want to do? How do you want to be different than your predecessor, the amazing Shari Steele” who has her own little statue. She’s the only non-Archive person who has a statue in the Archive, and Brewster did that to honor her and the work that we’ve done together.

What I said was, you know I think that there are enough people who care about the Internet, who understand, as my friend Cory Doctorow said, that whatever other issue draws you, if the Internet isn’t free this is the place. The Internet is going to be the means by which we do all the rest of the change that we need to do so badly in this world. And that I think there’s enough people now that we really have a movement, and we need to start thinking of ourselves as a movement, and we have to figure out what our next steps are.

And I have to say, sitting here and listening to all the presentations tonight, seeing the amazing activity out there, seeing the tentacles of what Aaron was a part of in the early days, and in some ways the heart of, in the early days, become a movement. You guys, you’re a movement and thank you so much for doing this. So let’s figure out what our next fights are together and our work is together. But, this has just been very exciting to see, and to see the growth. And, ya know, we lost our dear friend as a result of some really horrible laws and some really horrible policies, but seeing the green shoots that’ve grown as a result of this just does my heart good.

Lisa wanted me to talk a little about CISA, the cybersecurity act. I think that at this point the best thing that this community can do about CISA is first of all continue to talk about how rotten it is, because it’s a really rotten idea. We have a terrible cybersecurity problem. This is the a cybersecurity act that was recently passed out of the Senate.

We have a terrible problem with security on the Internet, as Brewster pointed out, and Congress just passed a bill that doesn’t make anything better and makes several things significantly worse, in the fine tradition of our Congress.

I don’t know that there’s too much we can do in terms of public activism on the bill right now, realistically, because it’s in a conference committee time, which isn’t the time when there are very many members of Congress who are going to pay attention to it. There’s one thing, though, that we have to keep watching on and that you’ll hear EFF and others rally the troops on, and that is the effort to try to put some horrible changes to the Computer Fraud and Abuse Act into this bill. We expect it’s going to come up again, and when it does you’ll hear the rallying cry. And I think if people who want to honor Aaron Swartz do one thing with regard to Congress and then go back to coding, the one thing you should do is say “That law goes no further. It doesn’t get any worse and it doesn’t take any lives.”

We have a couple other policy opportunities that I thought I’d mention to you guys. We just got a really amazing ruling out of the European Court of Justice in the last couple weeks that really points out what a global problem the NSA’s overreach and the surveillance overreach is. It’s got some complicated stuff having to do with the safe harbors and how American companies get to process information related to people all around the world. But the important part for us is to keep a close eye on what happens next, because the old rules have been crossed out and the American companies and the European regulators and the American government are in an intense negotiation about what happens next.

So we’ve got an inflection point opportunity here and we ought to be talking about this European Court of Justice opinion and what it means, because what the European Court of Justice said is the NSA surveillance is not appropriate. For the legal geeks, this is surveillance under Section 702 of the FISA Act and Executive Order 12333. What that means is the American government’s view that it can spy on the rest of the world with impunity, that it can do mass spying of people around the world who are not suspected of any crimes, who aren’t targets, who aren’t foreign spies, is unacceptable under European law. It’s a really excellent decision. You guys should all thank Max Schrems, who brought that case.

And there’s a moment now, for the next few months, and I think to the extent that you guys are blogging, writing, tweeting, you should be paying attention to this because we’ve the American companies are really scared. They want to be able to continue to serve Europe, and we need to give them a backbone to say “enough with the surveillance. It’s hurting our business.” And if we could have that argument plus “it’s actually just plain wrong.” We might be able to get somewhere. So please, if you’re watching the policy debates, that’s something to watch.

There is some good news in the state of California. We just passed, and we got Governor Brown to sign, a law called CalECPA, which requires the cops, the California state cops, to get a warrant before they go after your information stored with service providers. This is completely consistent with the values— it’s California taking the lead in a place where frankly the U.S. Congress is unwilling to go, and we’re hoping to spread this across the country. So, for people who are not Californians this is a law to look at if you want to do something locally and try to match or even do one better than California did with that. So we’ve got some good news as well.

And of course one of the other things that we’re going to have to keep an eye on in the policy things is the cryptowars are back. Now, I had the honor of being deeply involved in getting crypto free from government regulation when we did it the first time in the 90s and frankly I’d like to do something else now. So it’s time for the legislature and the FBI to get over it. Crypto is here to stay, and all of the tools that we’ve talked about here tonight depend on the ability for people to have strong unbreakable crypto, and we need to stand up for it again. Watch the EFF web site. We’re going to keep talking about this, and you’ll see some causes.

We just got 100,000 people to sign our savecrypto.org petition, which is going to go to the President now, and the President has to respond to it. It’s not too late, though. If people want to still sign it, I think it’s still available to sign. I think we need to send a strong message to the White House that President Obama needs to come out and take a strong stand on crypto, not just say “we’re not going to come after crypto right now, but we may do something later” but to say, “No. Hell no. Americans deserve to have locks on their doors that don’t have backdoor entries for law enforcement.”

And while the folks in Washington DC like to just wave their hands and say, “You geeks sort it out. Find a way to have a backdoor that only good guys can go in and bad guys can’t,” those of us who know about technology, and more importantly those of us who know about math, know that this is impossible. So we need to make sure that that message starts here from the West Coast and makes it all the way to the East Coast. I hear they know about math out there, too, so it shouldn’t be that hard to explain it. But I think we’re going to have to continue to do some explaining.

So that’s just a quick update of what we’re doing at EFF. I’m so happy to see so many projects being celebrated here that were created or inspired or legally defended by EFF. We’re going to continue to be the support for this community. One of the things that John Perry Barlow taught me years ago is that your rights aren’t given to you, your rights have to be taken. And we’re here today to continue to take our rights.

Thanks.

NSA To Shut Down Bulk Phone Surveillance Program By Sunday

NSA to shut down bulk phone surveillance program by Sunday

By Dustin Volz for Reuters

From the article:
The U.S. National Security Agency will end its daily vacuuming of millions of Americans’ phone records by Sunday and replace the practice with more tightly targeted surveillance methods, the Obama administration said on Friday.

As required by law, the NSA will end its wide-ranging surveillance program by 11:59 p.m. EST Saturday (4:59 a.m. GMT Sunday) and expects to have the new, scaled-back system in place by then, the White House said.

The transition is a long-awaited victory for privacy advocates and tech companies wary of broad government surveillance at a time when national security concerns are heightened in the wake of the Paris attacks earlier this month.

It comes two and a half years after the controversial program was exposed by former NSA contractor Edward Snowden. The move, mandated by a law passed six months ago, represents the greatest reduction of U.S. spying capabilities since they expanded dramatically after the Sept. 11, 2001 attacks.

Under the Freedom Act, the NSA and law enforcement agencies can no longer collect telephone calling records in bulk in an effort to sniff out suspicious activity. Such records, known as “metadata,” reveal which numbers Americans are calling and what time they place those calls, but not the content of the conversations.

Instead analysts must now get a court order to ask telecommunications companies like Verizon Communications to enable monitoring of call records of specific people or groups for up to six months.

Chelsea Manning Prepares Special Statement For Aaron Swartz Day Celebration

Donate to Chelsea’s legal defense fund to help with her appeal.

In support of this year’s Aaron Swartz Day and International Hackathon, Chelsea Manning has prepared a special statement that will be read at Saturday night’s Celebration of Hackers and Whistleblowers at the Internet Archive.

HERE IS THE LINK FOR A LIVE WEBCAST OF TONIGHT’S SPEAKERS, at 8:00 pm PST. (Movies only seen by attendees.)

Meanwhile, Chelsea has written an Op-Ed for the Guardian on why the FISA courts should be abolished. (She’s also published a 129-page surveillance reform bill.)

Sign this petition from Fight For The Future to tell your politicians to read Chelsea’s bill.

Fisa courts stifle the due process they were supposed to protect. End them

Intelligence agencies will always seek to collect more data. But the courts that oversee them must be as concerned about due process as they are with secrets

From the article:

 Those courts were established nearly 40 years ago, in response to allegations that the intelligence community was abusing their power in order to spy on US citizens: the US Senate’s Church Committee conducted a massive investigation into the intelligence community and expressed concerns that the privacy rights of US citizens had been violated by activities conducted under pretenses of foreign intelligence collection.

The result then was new procedures and the creation of a new court system – the Foreign Intelligence Court – to process surveillance requests by the government in secret. Unfortunately, it also created a new host of oversight problems: only a similar secret court process can review the actions taken by the courts, leaving many in Congress and all of the American public in the dark.

Some of these systemic problems have finally been examined by non-Fisa courts in the last two years – most notably by the US court of appeals for the second circuit early in 2015. However, because of the continuing secrecy of the Fisa courts, any ruling by a court of appeals was only a symbolic gesture. The USA Freedom Act, for all that it’s trumpeted as the solution to some of the excessed, does little to institute real oversight over the Fisa courts.

The solution: we should abolish the entire Fisa Court system and bring all surveillance requests into the oldest and most tested court system in America: the US district courts and courts of appeal.