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Paul Merrell

ACLU Demands Secret Court Hand Over Crucial Rulings On Surveillance Law - 0 views

www.mintpressnews.com/...221667

surveillance state FISA-Court opinions disclosure litigation ACLU

shared by Paul Merrell on 24 Oct 16 - No Cached
  • The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.
  • Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.
  • Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”
Gary Edwards

Tech Execs Express Extreme Concern That NSA Surveillance Could Lead To 'Breaking' The I... - 0 views

www.techdirt.com/...ead-to-breaking-internet.shtml

NSA-Patriot-Act-NDAA

shared by Gary Edwards on 10 Oct 14 - No Cached
  • We need to look the world's dangers in the face. And we need to resolve that we will not allow the dangers of the world to freeze this country in its tracks. We need to recognize that antiquated laws will not keep the public safe. We need to recognize that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies and even the intelligence community itself. At the end of the day, we need to recognize... the one asset that the US has which is even stronger than our military might is our moral authority. And this decline in trust, has not only effected people's trust in American technology products. It has effected people's willingness to trust the leadership of the United States. If we are going to win the war on terror. If we are going to keep the public safe. If we are going to improve American competitiveness, we need Congress to stay on the path it's set. We need Congress to finish in December the job the President put before Congress in January.
  • Gary Edwards on 10 Oct 14
     
    "Nothing necessarily earth-shattering was said by anyone, but it did involve a series of high powered tech execs absolutely slamming the NSA and the intelligence community, and warning of the vast repercussions from that activity, up to and including potentially splintering or "breaking" the internet by causing people to so distrust the existing internet, that they set up separate networks on their own. The execs repeated the same basic points over and over again. They had been absolutely willing to work with law enforcement when and where appropriate based on actual court orders and review -- but that the government itself completely poisoned the well with its activities, including hacking into the transmission lines between overseas datacenters. Thus, as Eric Schmidt noted, if the NSA and other law enforcement folks are "upset" about Google and others suddenly ramping up their use of encryption and being less willing to cooperate with the government, they only have themselves to blame for completely obliterating any sense of trust. Microsoft's Brad Smith, towards the end, made quite an impassioned plea -- it sounded more like a politician's stump speech -- about the need for rebuilding trust in the internet. It's at about an hour and 3 minutes into the video. He points out that while people had expected Congress to pass the USA Freedom Act, the rise of ISIS and other claimed threats has some people scared, but, he notes: We need to look the world's dangers in the face. And we need to resolve that we will not allow the dangers of the world to freeze this country in its tracks. We need to recognize that antiquated laws will not keep the public safe. We need to recognize that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies and even the intelligence community itself. At the end of the day, we need to recognize... the one asset that the US has which is even stron
Gonzalo San Gil, PhD.

Don't Wreck The Net! Respond By January 6th - 0 views

dontwreckthe.net

public consultation protect Internet European Commission deadline exteended January 6th 2016 act participate now freedom freedom of expression

shared by Gonzalo San Gil, PhD. on 03 Jan 16 - No Cached
  • Gonzalo San Gil, PhD. on 03 Jan 16
     
    "The European Commission is asking the public critical questions about the future of our online world, but these questions are buried throughout a lengthy consultation survey that will probably make your eyes water. We need you to tackle the survey and make your voice heard. It's not easy, so we're here to help. Go ahead, take a look at the public consultation. It's got five pages of oblique questions and too much smallprint for anyone's taste. But it's really all asking one thing: what are the roles and responsibilities of service providers in the digital world? Our survey survival guide helps you overcome the bureaucratic barrier and answer that question, because it's at risk of being ignored."
  • Gonzalo San Gil, PhD. on 03 Jan 16
     
    "The European Commission is asking the public critical questions about the future of our online world, but these questions are buried throughout a lengthy consultation survey that will probably make your eyes water. We need you to tackle the survey and make your voice heard. It's not easy, so we're here to help. Go ahead, take a look at the public consultation. It's got five pages of oblique questions and too much smallprint for anyone's taste. But it's really all asking one thing: what are the roles and responsibilities of service providers in the digital world? Our survey survival guide helps you overcome the bureaucratic barrier and answer that question, because it's at risk of being ignored."
Paul Merrell

Exclusive: Inside America's Plan to Kill Online Privacy Rights Everywhere | The Cable - 0 views

thecable.foreignpolicy.com/...line_privacy_rights_everywhere

surveillance state NSA NSA-blowback UN digital-privacy human rights

shared by Paul Merrell on 22 Nov 13 - No Cached
  • The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable. The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.
  • The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week. A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.
  • Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations." But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.
  • ...6 more annotations...
  • n recent days, the United States circulated to its allies a confidential paper highlighting American objectives in the negotiations, "Right to Privacy in the Digital Age -- U.S. Redlines." It calls for changing the Brazilian and German text so "that references to privacy rights are referring explicitly to States' obligations under ICCPR and remove suggestion that such obligations apply extraterritorially." In other words: America wants to make sure it preserves the right to spy overseas. The U.S. paper also calls on governments to promote amendments that would weaken Brazil's and Germany's contention that some "highly intrusive" acts of online espionage may constitute a violation of freedom of expression. Instead, the United States wants to limit the focus to illegal surveillance -- which the American government claims it never, ever does. Collecting information on tens of millions of people around the world is perfectly acceptable, the Obama administration has repeatedly said. It's authorized by U.S. statute, overseen by Congress, and approved by American courts.
  • "Recall that the USG's [U.S. government's] collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights," the paper states. "So a paragraph expressing concern about illegal surveillance is one with which we would agree." The privacy resolution, like most General Assembly decisions, is neither legally binding nor enforceable by any international court. But international lawyers say it is important because it creates the basis for an international consensus -- referred to as "soft law" -- that over time will make it harder and harder for the United States to argue that its mass collection of foreigners' data is lawful and in conformity with human rights norms. "They want to be able to say ‘we haven't broken the law, we're not breaking the law, and we won't break the law,'" said Dinah PoKempner, the general counsel for Human Rights Watch, who has been tracking the negotiations. The United States, she added, wants to be able to maintain that "we have the freedom to scoop up anything we want through the massive surveillance of foreigners because we have no legal obligations."
  • The United States negotiators have been pressing their case behind the scenes, raising concerns that the assertion of extraterritorial human rights could constrain America's effort to go after international terrorists. But Washington has remained relatively muted about their concerns in the U.N. negotiating sessions. According to one diplomat, "the United States has been very much in the backseat," leaving it to its allies, Australia, Britain, and Canada, to take the lead. There is no extraterritorial obligation on states "to comply with human rights," explained one diplomat who supports the U.S. position. "The obligation is on states to uphold the human rights of citizens within their territory and areas of their jurisdictions."
  • The position, according to Jamil Dakwar, the director of the American Civil Liberties Union's Human Rights Program, has little international backing. The International Court of Justice, the U.N. Human Rights Committee, and the European Court have all asserted that states do have an obligation to comply with human rights laws beyond their own borders, he noted. "Governments do have obligation beyond their territories," said Dakwar, particularly in situations, like the Guantanamo Bay detention center, where the United States exercises "effective control" over the lives of the detainees. Both PoKempner and Dakwar suggested that courts may also judge that the U.S. dominance of the Internet places special legal obligations on it to ensure the protection of users' human rights.
  • "It's clear that when the United States is conducting surveillance, these decisions and operations start in the United States, the servers are at NSA headquarters, and the capabilities are mainly in the United States," he said. "To argue that they have no human rights obligations overseas is dangerous because it sends a message that there is void in terms of human rights protection outside countries territory. It's going back to the idea that you can create a legal black hole where there is no applicable law." There were signs emerging on Wednesday that America may have been making ground in pressing the Brazilians and Germans to back on one of its toughest provisions. In an effort to address the concerns of the U.S. and its allies, Brazil and Germany agreed to soften the language suggesting that mass surveillance may constitute a violation of human rights. Instead, it simply deep "concern at the negative impact" that extraterritorial surveillance "may have on the exercise of and enjoyment of human rights." The U.S., however, has not yet indicated it would support the revised proposal.
  • The concession "is regrettable. But it’s not the end of the battle by any means," said Human Rights Watch’s PoKempner. She added that there will soon be another opportunity to corral America's spies: a U.N. discussion on possible human rights violations as a result of extraterritorial surveillance will soon be taken up by the U.N. High commissioner.
  • Paul Merrell on 22 Nov 13
     
    Woo-hoo! Go get'em, U.N.
Paul Merrell

What's Scarier: Terrorism, or Governments Blocking Websites in its Name? - The Intercept - 0 views

firstlook.org/...terally-blocking-websites-name

censorship-crimes web-site-blocking terrorism™ civil liberties discrimination War-on-Muslims

shared by Paul Merrell on 19 Mar 15 - No Cached
  • Forcibly taking down websites deemed to be supportive of terrorism, or criminalizing speech deemed to “advocate” terrorism, is a major trend in both Europe and the West generally. Last month in Brussels, the European Union’s counter-terrorism coordinator issued a memo proclaiming that “Europe is facing an unprecedented, diverse and serious terrorist threat,” and argued that increased state control over the Internet is crucial to combating it. The memo noted that “the EU and its Member States have developed several initiatives related to countering radicalisation and terrorism on the Internet,” yet argued that more must be done. It argued that the focus should be on “working with the main players in the Internet industry [a]s the best way to limit the circulation of terrorist material online.” It specifically hailed the tactics of the U.K. Counter-Terrorism Internet Referral Unit (CTIRU), which has succeeded in causing the removal of large amounts of material it deems “extremist”:
  • In addition to recommending the dissemination of “counter-narratives” by governments, the memo also urged EU member states to “examine the legal and technical possibilities to remove illegal content.” Exploiting terrorism fears to control speech has been a common practice in the West since 9/11, but it is becoming increasingly popular even in countries that have experienced exceedingly few attacks. A new extremist bill advocated by the right-wing Harper government in Canada (also supported by Liberal Party leader Justin Trudeau even as he recognizes its dangers) would create new crimes for “advocating terrorism”; specifically: “every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general” would be a guilty and can be sent to prison for five years for each offense. In justifying the new proposal, the Canadian government admits that “under the current criminal law, it is [already] a crime to counsel or actively encourage others to commit a specific terrorism offence.” This new proposal is about criminalizing ideas and opinions. In the government’s words, it “prohibits the intentional advocacy or promotion of terrorism, knowing or reckless as to whether it would result in terrorism.”
  • If someone argues that continuous Western violence and interference in the Muslim world for decades justifies violence being returned to the West, or even advocates that governments arm various insurgents considered by some to be “terrorists,” such speech could easily be viewed as constituting a crime. To calm concerns, Canadian authorities point out that “the proposed new offence is similar to one recently enacted by Australia, that prohibits advocating a terrorist act or the commission of a terrorism offence-all while being reckless as to whether another person will engage in this kind of activity.” Indeed, Australia enacted a new law late last year that indisputably targets political speech and ideas, as well as criminalizing journalism considered threatening by the government. Punishing people for their speech deemed extremist or dangerous has been a vibrant practice in both the U.K. and U.S. for some time now, as I detailed (coincidentally) just a couple days before free speech marches broke out in the West after the Charlie Hebdo attacks. Those criminalization-of-speech attacks overwhelmingly target Muslims, and have resulted in the punishment of such classic free speech activities as posting anti-war commentary on Facebook, tweeting links to “extremist” videos, translating and posting “radicalizing” videos to the Internet, writing scholarly articles in defense of Palestinian groups and expressing harsh criticism of Israel, and even including a Hezbollah channel in a cable package.
  • ...2 more annotations...
  • Beyond the technical issues, trying to legislate ideas out of existence is a fool’s game: those sufficiently determined will always find ways to make themselves heard. Indeed, as U.S. pop star Barbra Streisand famously learned, attempts to suppress ideas usually result in the greatest publicity possible for their advocates and/or elevate them by turning fringe ideas into martyrs for free speech (I have zero doubt that all five of the targeted sites enjoyed among their highest traffic dates ever today as a result of the French targeting). But the comical futility of these efforts is exceeded by their profound dangers. Who wants governments to be able to unilaterally block websites? Isn’t the exercise of this website-blocking power what has long been cited as reasons we should regard the Bad Countries — such as China and Iran — as tyrannies (which also usually cite “counterterrorism” to justify their censorship efforts)?
  • s those and countless other examples prove, the concepts of “extremism” and “radicalizing” (like “terrorism” itself) are incredibly vague and elastic, and in the hands of those who wield power, almost always expand far beyond what you think it should mean (plotting to blow up innocent people) to mean: anyone who disseminates ideas that are threatening to the exercise of our power. That’s why powers justified in the name of combating “radicalism” or “extremism” are invariably — not often or usually, but invariably — applied to activists, dissidents, protesters and those who challenge prevailing orthodoxies and power centers. My arguments for distrusting governments to exercise powers of censorship are set forth here (in the context of a prior attempt by a different French minister to control the content of Twitter). In sum, far more damage has been inflicted historically by efforts to censor and criminalize political ideas than by the kind of “terrorism” these governments are invoking to justify these censorship powers. And whatever else may be true, few things are more inimical to, or threatening of, Internet freedom than allowing functionaries inside governments to unilaterally block websites from functioning on the ground that the ideas those sites advocate are objectionable or “dangerous.” That’s every bit as true when the censors are in Paris, London, and Ottawa, and Washington as when they are in Tehran, Moscow or Beijing.
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