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The Obama administration fought a legal battle against Google to secretly obtain the email records of a security researcher and journalist associated with WikiLeaks. Newly unsealed court documents obtained by The Intercept reveal the Justice Department won an order forcing Google to turn over more than one year’s worth of data from the Gmail account of Jacob Appelbaum (pictured above), a developer for the Tor online anonymity project who has worked with WikiLeaks as a volunteer. The order also gagged Google, preventing it from notifying Appelbaum that his records had been provided to the government. The surveillance of Appelbaum’s Gmail account was tied to the Justice Department’s long-running criminal investigation of WikiLeaks, which began in 2010 following the transparency group’s publication of a large cache of U.S. government diplomatic cables. According to the unsealed documents, the Justice Department first sought details from Google about a Gmail account operated by Appelbaum in January 2011, triggering a three-month dispute between the government and the tech giant. Government investigators demanded metadata records from the account showing email addresses of those with whom Appelbaum had corresponded between the period of November 2009 and early 2011; they also wanted to obtain information showing the unique IP addresses of the computers he had used to log in to the account.

The Justice Department argued in the case that Appelbaum had “no reasonable expectation of privacy” over his email records under the Fourth Amendment, which protects against unreasonable searches and seizures. Rather than seeking a search warrant that would require it to show probable cause that he had committed a crime, the government instead sought and received an order to obtain the data under a lesser standard, requiring only “reasonable grounds” to believe that the records were “relevant and material” to an ongoing criminal investigation. Google repeatedly attempted to challenge the demand, and wanted to immediately notify Appelbaum that his records were being sought so he could have an opportunity to launch his own legal defense. Attorneys for the tech giant argued in a series of court filings that the government’s case raised “serious First Amendment concerns.” They noted that Appelbaum’s records “may implicate journalistic and academic freedom” because they could “reveal confidential sources or information about WikiLeaks’ purported journalistic or academic activities.” However, the Justice Department asserted that “journalists have no special privilege to resist compelled disclosure of their records, absent evidence that the government is acting in bad faith,” and refused to concede Appelbaum was in fact a journalist. It claimed it had acted in “good faith throughout this criminal investigation, and there is no evidence that either the investigation or the order is intended to harass the … subscriber or anyone else.” Google’s attempts to fight the surveillance gag order angered the government, with the Justice Department stating that the company’s “resistance to providing the records” had “frustrated the government’s ability to efficiently conduct a lawful criminal investigation.”

Google accused the government of hyperbole and argued that the backlash over the Twitter order did not justify secrecy related to the Gmail surveillance. “Rather than demonstrating how unsealing the order will harm its well-publicized investigation, the government lists a parade of horribles that have allegedly occurred since it unsealed the Twitter order, yet fails to establish how any of these developments could be further exacerbated by unsealing this order,” wrote Google’s attorneys. “The proverbial toothpaste is out of the tube, and continuing to seal a materially identical order will not change it.” But Google’s attempt to overturn the gag order was denied by magistrate judge Ivan D. Davis in February 2011. The company launched an appeal against that decision, but this too was rebuffed, in March 2011, by District Court judge Thomas Selby Ellis, III.

Despite the post-Snowden spotlight on mass surveillance, the intelligence community’s easiest end-run around the Fourth Amendment since 2001 has been something called a National Security Letter. FBI agents can demand that an Internet service provider, telephone company or financial institution turn over its records on any number of people — without any judicial review whatsoever — simply by writing a letter that says the information is needed for national security purposes. The FBI at one point was cranking out over 50,000 such letters a year; by the latest count, it still issues about 60 a day. The letters look like this:

Recipients are legally required to comply — but it doesn’t stop there. They also aren’t allowed to mention the order to anyone, least of all the person whose data is being searched. Ever. That’s because National Security Letters almost always come with eternal gag orders. Here’s that part:

That means the NSL process utterly disregards the First Amendment as well. More than a year ago, President Obama announced that he was ordering the Justice Department to terminate gag orders “within a fixed time unless the government demonstrates a real need for further secrecy.” And on Feb. 3, when the Office of the Director of National Intelligence announced a handful of baby steps resulting from its “comprehensive effort to examine and enhance [its] privacy and civil liberty protections” one of the most concrete was — finally — to cap the gag orders: In response to the President’s new direction, the FBI will now presumptively terminate National Security Letter nondisclosure orders at the earlier of three years after the opening of a fully predicated investigation or the investigation’s close. Continued nondisclosures orders beyond this period are permitted only if a Special Agent in Charge or a Deputy Assistant Director determines that the statutory standards for nondisclosure continue to be satisfied and that the case agent has justified, in writing, why continued nondisclosure is appropriate.

About 89,000 foreigners or organizations were targeted for spying under a U.S. surveillance order last year, according to a new transparency report. The report was released for the first time Friday by the Office of the Director of Intelligence, upon order of the president, in the wake of surveillance leaks by NSA whistleblower Edward Snowden. But the report, which covers only surveillance orders issued in 2013, doesn’t tell the whole story about how many individuals the spying targeted or how many Americans were caught in the surveillance that targeted foreigners. Civil liberties groups say the real number is likely “orders of magnitude” larger than this. “Even if it was an honest definition of ‘target’—that is, an individual instead of a group—that also is not encompassing those who are ancillary to a target and are caught up in the dragnet,” says Kurt Opsahl, deputy general counsel of the Electronic Frontier Foundation.

The report, remarkably, shows that the government obtained just one order last year under Section 702 of FISA—which allows for bulk collection of data on foreigners—and that this one order covered 89,138 targets. But, as the report notes, “target” can refer to “an individual person, a group, an organization composed of multiple individuals or a foreign power that possesses or is likely to communicate foreign intelligence information.” Furthermore, Section 702 orders are actually certificates issued by the FISA Court that can cover surveillance of an entire facility. And since, as the government points out in its report, the government cannot know how many people use a facility, the figure only “reflects an estimate of the number of known users of particular facilities (sometimes referred to as selectors) subject to intelligence collection under those Certifications,” the report notes.

“If you’re actually trying to get a sense of the number of human beings affected or the number of Americans affected, the number of people affected is vastly, vastly larger,” says Julian Sanchez, senior fellow at the Cato Institute. “And how many of those are Americans is impossible to say. But [although] you may not think you are routinely communicating with foreign persons, [this] is not any kind of assurance that your communications are not part of the traffic subject to interception.” Sanchez points out that each individual targeted is likely communicating with dozens or hundred of others, whose communications will be picked up in the surveillance. “And probably a lot of these targets are not individuals but entire web sites or companies. While [a company like the Chinese firm] Huawei might be a target, thousands of emails used by thousands of employees will be swept up.” How many of those employees might be American or communicating with Americans is unknown.

Today, 29 July 2014, WikiLeaks releases an unprecedented Australian censorship order concerning a multi-million dollar corruption case explicitly naming the current and past heads of state of Indonesia, Malaysia and Vietnam, their relatives and other senior officials. The super-injunction invokes “national security” grounds to prevent reporting about the case, by anyone, in order to “prevent damage to Australia's international relations”. The court-issued gag order follows the secret 19 June 2014 indictment of seven senior executives from subsidiaries of Australia's central bank, the Reserve Bank of Australia (RBA). The case concerns allegations of multi-million dollar inducements made by agents of the RBA subsidiaries Securency and Note Printing Australia in order to secure contracts for the supply of Australian-style polymer bank notes to the governments of Malaysia, Indonesia, Vietnam and other countries. Read the full press release here. Download the full Australia-wide censorship order for corruption case involving Malaysia, Indonesia and Vietnam.

“WE APPRECIATE THAT there are times when secrecy around a government warrant is needed,” Microsoft President Brad Smith wrote in a blog post on Thursday. “But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.” With those words, Smith announced that Microsoft was suing the Department of Justice for the right to inform its customers when the government is reading their emails. The last big fight between the Justice Department and Silicon Valley was started by law enforcement, when the FBI demanded that Apple unlock a phone used by San Bernardino killer Syed Rizwan Farook. This time, Microsoft is going on the offensive. The move is welcomed by privacy activists as a step forward for transparency — though it’s also for business reasons.

Secret government searches are eroding people’s trust in the cloud, Smith wrote — including large and small businesses now keeping massive amounts of records online. “The transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes private information or communications,” he wrote. According to the complaint, Microsoft received 5,624 federal demands for customer information or data in the past 18 months. Almost half — 2,576 — came with gag orders, and almost half of those — 1,752 — had “no fixed end date” by which Microsoft would no longer be sworn to secrecy. These requests, though signed off on by a judge, qualify as unconstitutional searches, the attorneys argue. It “violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations — subject only to restraints narrowly tailored to serve compelling government interests,” they wrote.

Less than a week after the attacks in Paris — while the public and policymakers were still reeling, and the investigation had barely gotten off the ground — Cy Vance, Manhattan’s District Attorney, released a policy paper calling for legislation requiring companies to provide the government with backdoor access to their smartphones and other mobile devices. This is the first concrete proposal of this type since September 2014, when FBI Director James Comey reignited the “Crypto Wars” in response to Apple’s and Google’s decisions to use default encryption on their smartphones. Though Comey seized on Apple’s and Google’s decisions to encrypt their devices by default, his concerns are primarily related to end-to-end encryption, which protects communications that are in transit. Vance’s proposal, on the other hand, is only concerned with device encryption, which protects data stored on phones. It is still unclear whether encryption played any role in the Paris attacks, though we do know that the attackers were using unencrypted SMS text messages on the night of the attack, and that some of them were even known to intelligence agencies and had previously been under surveillance. But regardless of whether encryption was used at some point during the planning of the attacks, as I lay out below, prohibiting companies from selling encrypted devices would not prevent criminals or terrorists from being able to access unbreakable encryption. Vance’s primary complaint is that Apple’s and Google’s decisions to provide their customers with more secure devices through encryption interferes with criminal investigations. He claims encryption prevents law enforcement from accessing stored data like iMessages, photos and videos, Internet search histories, and third party app data. He makes several arguments to justify his proposal to build backdoors into encrypted smartphones, but none of them hold water.

Before addressing the major privacy, security, and implementation concerns that his proposal raises, it is worth noting that while an increase in use of fully encrypted devices could interfere with some law enforcement investigations, it will help prevent far more crimes — especially smartphone theft, and the consequent potential for identity theft. According to Consumer Reports, in 2014 there were more than two million victims of smartphone theft, and nearly two-thirds of all smartphone users either took no steps to secure their phones or their data or failed to implement passcode access for their phones. Default encryption could reduce instances of theft because perpetrators would no longer be able to break into the phone to steal the data.

Vance argues that creating a weakness in encryption to allow law enforcement to access data stored on devices does not raise serious concerns for security and privacy, since in order to exploit the vulnerability one would need access to the actual device. He considers this an acceptable risk, claiming it would not be the same as creating a widespread vulnerability in encryption protecting communications in transit (like emails), and that it would be cheap and easy for companies to implement. But Vance seems to be underestimating the risks involved with his plan. It is increasingly important that smartphones and other devices are protected by the strongest encryption possible. Our devices and the apps on them contain astonishing amounts of personal information, so much that an unprecedented level of harm could be caused if a smartphone or device with an exploitable vulnerability is stolen, not least in the forms of identity fraud and credit card theft. We bank on our phones, and have access to credit card payments with services like Apple Pay. Our contact lists are stored on our phones, including phone numbers, emails, social media accounts, and addresses. Passwords are often stored on people’s phones. And phones and apps are often full of personal details about their lives, from food diaries to logs of favorite places to personal photographs. Symantec conducted a study, where the company spread 50 “lost” phones in public to see what people who picked up the phones would do with them. The company found that 95 percent of those people tried to access the phone, and while nearly 90 percent tried to access private information stored on the phone or in other private accounts such as banking services and email, only 50 percent attempted contacting the owner.

Director of National Intelligence James Clapper this morning released a report detailing new rules aimed at reforming the way signals intelligence is collected and stored by certain members of the United States Intelligence Community (IC). The long-awaited changes follow up on an order announced by President Obama one year ago that laid out the White House’s principles governing the collection of signals intelligence. That order, commonly known as PPD-28, purports to place limits on the use of data collected in bulk and to increase privacy protections related to the data collected, regardless of nationality. Accordingly, most of the changes presented as “new” by Clapper’s office  (ODNI) stem directly from the guidance provided in PPD-28, and so aren’t truly new. And of the biggest changes outlined in the report, there are still large exceptions that appear to allow the government to escape the restrictions with relative ease. Here’s a quick rundown.

National security letters (NSLs). The report also states that the FBI’s gag orders related to NSLs expire three years after the opening of a full-blown investigation or three years after an investigation’s close, whichever is earlier. However, these expiration dates can be easily overridden by by an FBI Special Agent in Charge or a Deputy Assistant FBI Director who finds that the statutory standards for secrecy about the NSL continue to be satisfied (which at least one court has said isn’t a very high bar). This exception also doesn’t address concerns that NSL gag orders lack adequate due process protections, lack basic judicial oversight, and may violate the First Amendment.

Retention policy for non-U.S. persons. The new rules say that the IC must now delete information about “non-U.S. persons” that’s been gathered via signals intelligence after five-years. However, there is a loophole that will let spies hold onto that information indefinitely whenever the Director of National Intelligence determines (after considering the views of the ODNI’s Civil Liberties Protection Officer) that retaining information is in the interest of national security. The new rules don’t say whether the exceptions will be directed at entire groups of people or individual surveillance targets.  Section 215 metadata. Updates to the rules concerning the use of data collected under Section 215 of the Patriot Act includes the requirement that the Foreign Intelligence Surveillance Court (rather than authorized NSA officials) must determine spies have “reasonable, articulable suspicion” prior to query Section 215 data, outside of emergency circumstances. What qualifies as an emergency for these purposes? We don’t know. Additionally, the IC is now limited to two “hops” in querying the database. This means that spies can only play two degrees of Kevin Bacon, instead of the previously allowed three degrees, with the contacts of anyone targeted under Section 215. The report doesn’t explain what would prevent the NSA (or other agency using the 215 databases) from getting around this limit by redesignating a phone number found in the first or second hop as a new “target,” thereby allowing the agency to continue the contact chain.

The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative action. A set of key Patriot Act surveillance authorities expire June 1, but the effective date is May 21 — the last day before Congress breaks for a Memorial Day recess. In a letter to be sent Wednesday to the Obama administration and senior lawmakers, the coalition vowed to oppose any legislation that, among other things, does not ban the “bulk collection” of Americans’ phone records and other data.

We know that there are some in Congress who think that they can get away with reauthorizing the expiring provisions of the Patriot Act without any reforms at all,” said Kevin Bankston, policy director of New America Foundation’s Open Technology Institute, a privacy group that organized the effort. “This letter draws a line in the sand that makes clear that the privacy community and the Internet industry do not intend to let that happen without a fight.” At issue is the bulk collection of Americans’ data by intelligence agencies such as the National Security Agency. The NSA’s daily gathering of millions of records logging phone call times, lengths and other “metadata” stirred controversy when it was revealed in June 2013 by former NSA contractor Edward Snowden. The records are placed in a database that can, with a judge’s permission, be searched for links to foreign terrorists.They do not include the content of conversations.

That program, placed under federal surveillance court oversight in 2006, was authorized by the court in secret under Section 215 of the Patriot Act — one of the expiring provisions. The public outcry that ensued after the program was disclosed forced President Obama in January 2014 to call for an end to the NSA’s storage of the data. He also appealed to Congress to find a way to preserve the agency’s access to the data for counterterrorism information.

Gagging orders in the FBI's National Security Letters are all above board and constitutional, a California court has ruled. These security letters are typically sent to internet giants demanding information on whoever is behind a username or email address. Crucially, these requests include clauses that prevent the organizations from warning specific subscribers that they are under surveillance by the Feds. Cloudflare and Credo Mobile aren't happy with that, and – with the help of rights warriors at the EFF – challenged the gagging orders. Despite earlier successes in their legal battle, the 9th US Circuit Court of Appeals ruled [PDF] on Monday that the gagging orders do not trample on First Amendment rights.

The FBI dishes out thousands of National Security Letters (NSLs) every year; they can simply be issued by a special agent in charge in a bureau field office, and don’t require judicial review. They allow the Feds to obtain the name, address, and records of any services used – but not the contents of conversations – plus billing records of a person, and forbid the hosting company from telling the subject, meaning those under investigation can’t challenge the decision. It used to be the case that companies couldn’t even mention the existence of the NSL system for fear of prosecution. However, in 2013 a US district court in San Francisco ruled that such extreme gagging violated the First Amendment. That decision came after Google, and later others, started publishing the number of NSL orders that had been received, in defiance of the law. In 2015 the Obama administration amended the law to allow companies limited rights to disclose NSL orders, and to set a three-year limit for the gagging order. It also set up a framework for companies to challenge the legitimacy of NSL subpoenas, and it was these changes that caused the appeals court verdict in favor of the government.

Europe’s highest court on Tuesday struck down an international agreement that allowed companies to move digital information like people’s web search histories and social media updates between the European Union and the United States. The decision left the international operations of companies like Google and Facebook in a sort of legal limbo even as their services continued working as usual.The ruling, by the European Court of Justice, said the so-called safe harbor agreement was flawed because it allowed American government authorities to gain routine access to Europeans’ online information. The court said leaks from Edward J. Snowden, the former contractor for the National Security Agency, made it clear that American intelligence agencies had almost unfettered access to the data, infringing on Europeans’ rights to privacy. The court said data protection regulators in each of the European Union’s 28 countries should have oversight over how companies collect and use online information of their countries’ citizens. European countries have widely varying stances towards privacy.

Data protection advocates hailed the ruling. Industry executives and trade groups, though, said the decision left a huge amount of uncertainty for big companies, many of which rely on the easy flow of data for lucrative businesses like online advertising. They called on the European Commission to complete a new safe harbor agreement with the United States, a deal that has been negotiated for more than two years and could limit the fallout from the court’s decision.

Some European officials and many of the big technology companies, including Facebook and Microsoft, tried to play down the impact of the ruling. The companies kept their services running, saying that other agreements with the European Union should provide an adequate legal foundation.But those other agreements are now expected to be examined and questioned by some of Europe’s national privacy watchdogs. The potential inquiries could make it hard for companies to transfer Europeans’ information overseas under the current data arrangements. And the ruling appeared to leave smaller companies with fewer legal resources vulnerable to potential privacy violations.

The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”

But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.

There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.