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Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.

Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 

While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.

At decade's end, the trusty landline telephone could be nothing more than a memory. Telecom giants AT&T T +0.31% AT&T Inc. U.S.: NYSE $35.07 +0.11 +0.31% March 28, 2014 4:00 pm Volume (Delayed 15m) : 24.66M AFTER HOURS $35.03 -0.04 -0.11% March 28, 2014 7:31 pm Volume (Delayed 15m): 85,446 P/E Ratio 10.28 Market Cap $182.60 Billion Dividend Yield 5.25% Rev. per Employee $529,844 03/29/14 Prepare to Hang Up the Phone, ... 03/21/14 AT&T Criticizes Netflix's 'Arr... 03/21/14 Samsung's Galaxy S5 Smartphone... More quote details and news » T in Your Value Your Change Short position and Verizon Communications VZ -0.57% Verizon Communications Inc. U.S.: NYSE $47.42 -0.27 -0.57% March 28, 2014 4:01 pm Volume (Delayed 15m) : 24.13M AFTER HOURS $47.47 +0.05 +0.11% March 28, 2014 7:59 pm Volume (Delayed 15m): 1.57M

The two providers want to lay the crumbling POTS to rest and replace it with Internet Protocol-based systems that use the same wired and wireless broadband networks that bring Web access, cable programming and, yes, even your telephone service, into your homes. You may think you have a traditional landline because your home phone plugs into a jack, but if you have bundled your phone with Internet and cable services, you're making calls over an IP network, not twisted copper wires. California, Florida, Texas, Georgia, North Carolina, Wisconsin and Ohio are among states that agree telecom resources would be better redirected into modern telephone technologies and innovations, and will kill copper-based technologies in the next three years or so. Kentucky and Colorado are weighing similar laws, which force people to go wireless whether they want to or not. In Mantoloking, N.J., Verizon wants to replace the landline system, which Hurricane Sandy wiped out, with its wireless Voice Link. That would make it the first entire town to go landline-less, a move that isn't sitting well with all residents.

Safety is one of them. Call 911 from a landline and the emergency operator pinpoints your exact address, down to the apartment number. Wireless phones lack those specifics, and even with GPS navigation aren't as precise. Matters are worse in rural and even suburban areas that signals don't reach, sometimes because they're blocked by buildings or the landscape. That's of concern to the Federal Communications Commission, which oversees all forms of U.S. communications services. Universal access is a tenet of its mission, and, despite the state-by-state degradation of the mandate, it's unwilling to let telecom companies simply drop geographically undesirable customers. Telecom firms need FCC approval to ax services completely, and can't do so unless there is a viable competitor to pick up the slack. Last year AT&T asked to turn off its legacy network, which could create gaps in universal coverage and will force people off the grid to get a wireless provider.

With only days left to act and Rand Paul threatening a filibuster, Senate Republicans remain deeply divided over the future of the PATRIOT Act and have no clear path to keep key government spying authorities from expiring at the end of the month. Crucial parts of the PATRIOT Act, including a provision authorizing the government’s controversial bulk collection of American phone records, first revealed by Edward Snowden, are due to lapse May 31. That means Congress has barely a week to figure out a fix before before lawmakers leave town for Memorial Day recess at the end of the next week. Story Continued Below The prospects of a deal look grim: Senate Majority Leader Mitch McConnell on Thursday night proposed just a two-month extension of expiring PATRIOT Act provisions to give the two sides more time to negotiate, but even that was immediately dismissed by critics of the program.

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.

Four months from now, at the same time that the National Security Agency finally abandons the massive domestic telephone dragnet exposed by whistleblower Edward Snowden, it will also stop perusing the vast archive of data collected by the program. The NSA announced on Monday that it will expunge all the telephone metadata it previously swept up, citing Section 215 of the U.S.A Patriot Act. The program was ruled illegal by a federal appeals court in May. In June, Congress voted to end the program, but gave the NSA until the end of November to phase it out. The historical metadata —  records of American phone calls showing who called who, when, and for how long — will be put out of the reach of analysts on November 29, although technical personnel will have access for three more months. The program started 14 years ago, and operated under rules requiring data be retained for five years, and then destroyed.

The only possible hold-up, ironically, would be if any of the civil lawsuits prompted by the program prohibit the destruction of the data. “The telephony metadata” will be “preserved solely because of preservation obligations in pending civil litigation,” the Office of the Director of National Intelligence announced. “As soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.” ACLU staff attorney Alex Abdo told The Intercept his organization is “pleased that the NSA intends to purge the call records it has collected illegally.” But, he added: “Even with today’s pledge, the devil may be in the details.”

Former US intelligence contractor Edward Snowden’s revelations rocked the world.  According to his detailed reports, the US had launched massive spying programs and was scrutinizing the communications of American citizens in a manner which could only be described as extreme and intense. The US’s reaction was swift and to the point. “”Nobody is listening to your telephone calls,” President Obama said when asked about the NSA. As quoted in The Guardian,  Obama went on to say that surveillance programs were “fully overseen not just by Congress but by the Fisa court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them”. However, it appears that Snowden may have missed a pivotal part of the US surveillance program. And in stating that the “nobody” is not listening to our calls, President Obama may have been fudging quite a bit.

In fact, Great Britain maintains a “listening post” at NSA HQ. The laws restricting live wiretaps do not apply to foreign countries  and thus this listening post  is not subject to  US law.  In other words, the restrictions upon wiretaps, etc. do not apply to the British listening post.  So when Great Britain hands over the recordings to the NSA, technically speaking, a law is not being broken and technically speaking, the US is not eavesdropping on our each and every call. It is Great Britain which is doing the eavesdropping and turning over these records to US intelligence. According to John Loftus, formerly an attorney with  the Department of Justice and author of a number of books concerning US intelligence activities, back in the late seventies  the USDOJ issued a memorandum proposing an amendment to FISA. Loftus, who recalls seeing  the memo, stated in conversation this week that the DOJ proposed inserting the words “by the NSA” into the FISA law  so the scope of the law would only restrict surveillance by the NSA, not by the British.  Any subsequent sharing of the data culled through the listening posts was strictly outside the arena of FISA. Obama was less than forthcoming when he insisted that “What I can say unequivocally is that if you are a US person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not.”

According to Loftus, the NSA is indeed listening as Great Britain is turning over the surveillance records en masse to that agency. Loftus states that the arrangement is reciprocal, with the US maintaining a parallel listening post in Great Britain. In an interview this past week, Loftus told this reporter that  he believes that Snowden simply did not know about the arrangement between Britain and the US. As a contractor, said Loftus, Snowden would not have had access to this information and thus his detailed reports on the extent of US spying, including such programs as XKeyscore, which analyzes internet data based on global demographics, and PRISM, under which the telecommunications companies, such as Google, Facebook, et al, are mandated to collect our communications, missed the critical issue of the FISA loophole.

May 6 (Bloomberg) -- Federal Communications Commission Chairman Julius Genachowski claimed power to regulate companies that provide Internet access, opening a fight with cable and telephone companies and sparking opposition from Republicans. Comcast Corp., Time Warner Cable Inc. and Cablevision Systems Corp., cable operators that sell Web connections, fell more than 6 percent in New York trading.

Genachowski’s plan requires commission approval, and two fellow Democrats have signaled they will support the chairman, giving him a majority. The FCC will vote following a comment period, spokeswoman Jen Howard said in an interview.

The FCC had censured Comcast, the largest U.S. cable provider, for blocking customers using the BitTorrent file- sharing software that can send and receive videos. Comcast said it acted to alleviate network congestion. The appeals court sided with Comcast.

Research for the Public Utility Law Project (PULP) has been released which details 'how Verizon deliberately moves back and forth between regulatory regimes, classifying its infrastructure either like a heavily regulated telephone network or a deregulated information service depending on its needs. The chicanery has allowed Verizon to raise telephone rates, all the while missing commitments for high-speed internet deployment' (PDF). In short, Verizon pushed for the government to give it common carrier privileges under Title II in order to build out its fiber network with tax-payer money. Result: increased service rates on telephone users to subsidize Verizon's 'infrastructure investment.' When it comes to regulations on Verizon's fiber network, however, Verizon has been pushing the government to classify its services as that of information only — i.e., beyond Title II. Verizon has made about $4.4 billion in additional revenue in New York City alone, 'money that's funneled directly from a Title II service to an array of services that currently lie beyond Title II's reach.' And it's all legal. An attorney at advocacy group Public Knowledge said it best: 'To expect that you can come in and use public infrastructure and funds to build a network and then be free of any regulation is absurd....When Verizon itself is describing these activities as a Title II common carrier, how can the FCC look at broadband internet and continue acting as though it's not a telecommunication network?'"

What does it look like when a society loses its sense of privacy? <div><a href="http://pubads.g.doubleclick.net/gampad/jump?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" title=""><img style="border:none;" src="http://pubads.g.doubleclick.net/gampad/ad?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" alt="" /></a></div>In the almost 18 months since the Snowden files first received coverage, writers and critics have had to guess at the answer. Does a certain trend, consumer complaint, or popular product epitomize some larger shift? Is trust in tech companies eroding—or is a subset just especially vocal about it? Polling would make those answers clear, but polling so far has been… confused. A new study, conducted by the Pew Internet Project last January and released last week, helps make the average American’s view of his or her privacy a little clearer. And their confidence in their own privacy is ... low. The study's findings—and the statistics it reports—stagger. Vast majorities of Americans are uncomfortable with how the government uses their data, how private companies use and distribute their data, and what the government does to regulate those companies. No summary can equal a recounting of the findings. Americans are displeased with government surveillance en masse:   

A new study finds that a vast majority of Americans trust neither the government nor tech companies with their personal data.

What does it look like when a society loses its sense of privacy? <div><a href="http://pubads.g.doubleclick.net/gampad/jump?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" title=""><img style="border:none;" src="http://pubads.g.doubleclick.net/gampad/ad?iu=%2F4624%2FTheAtlanticOnline%2Fchannel_technology&t=src%3Dblog%26by%3Drobinson-meyer%26title%3Damerican-surveillance-now-threatens-american-business%26pos%3Din-article&sz=300x250&c=285899172&tile=1" alt="" /></a></div>In the almost 18 months since the Snowden files first received coverage, writers and critics have had to guess at the answer. Does a certain trend, consumer complaint, or popular product epitomize some larger shift? Is trust in tech companies eroding—or is a subset just especially vocal about it? Polling would make those answers clear, but polling so far has been… confused. A new study, conducted by the Pew Internet Project last January and released last week, helps make the average American’s view of his or her privacy a little clearer. And their confidence in their own privacy is ... low. The study's findings—and the statistics it reports—stagger. Vast majorities of Americans are uncomfortable with how the government uses their data, how private companies use and distribute their data, and what the government does to regulate those companies. No summary can equal a recounting of the findings. Americans are displeased with government surveillance en masse:   

The USA PATRIOT Act granted the government powerful new spying capabilities that have grown out of control—but the provision that the FBI and NSA have been using to collect the phone records of millions of innocent people expires on June 1. Tell Congress: it’s time to rethink out-of-control spying. A vote to reauthorize Section 215 is a vote against the Constitution.

On June 5, 2013, the Guardian published a secret court order showing that the NSA has interpreted Section 215 to mean that, with the help of the FBI, it can collect the private calling records of millions of innocent people. The government could even try to use Section 215 for bulk collection of financial records. The NSA’s defenders argue that invading our privacy is the only way to keep us safe. But the White House itself, along with the President’s Review Board has said that the government can accomplish its goals without bulk telephone records collection. And the Privacy and Civil Liberties Oversight Board said, “We have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the PATRIOT Act] made a concrete difference in the outcome of a counterterrorism investigation.” Since June of 2013, we’ve continued to learn more about how out of control the NSA is. But what has not happened since June is legislative reform of the NSA. There have been myriad bipartisan proposals in Congress—some authentic and some not—but lawmakers didn’t pass anything. We need comprehensive reform that addresses all the ways the NSA has overstepped its authority and provides the NSA with appropriate and constitutional tools to keep America safe. In the meantime, tell Congress to take a stand. A vote against reauthorization of Section 215 is a vote for the Constitution.

One of the few positive things in the ill-named USA FREEDOM Act, enacted in 2015 after the Snowden revelations on NSA domestic spying, is that it required the Director of National Intelligence to regularly report on its domestic surveillance activities. On Friday, the latest report was released on just how much our own government is spying on us. The news is not good at all if you value freedom over tyranny.According to the annual report, named the Statistical Transparency Report Regarding Use of National Security Authorities, the US government intercepted and stored information from more than a half-billion of our telephone calls and text messages in 2017. That is a 300 percent increase from 2016. All of these intercepts were “legal” under the Foreign Intelligence Surveillance Act (FISA), which is ironic because FISA was enacted to curtail the Nixon-era abuse of surveillance on American citizens.Has the US government intercepted your phone calls and/or text messages? You don’t know, which is why the surveillance state is so evil. Instead of assuming your privacy is protected by the US Constitution, you must assume that the US government is listening in to your communications. The difference between these is the difference between freedom and tyranny. The ultimate triumph of totalitarian states was not to punish citizens for opposing its tyranny, but to successfully cause them to censor themselves before even expressing “subversive” thoughts.

Justia.com Opinion Summary: Plaintiffs alleged that they purchased billions of dollars worth of mobile handsets containing defendants' LCD panels and that the prices they paid for those handsets were artificially inflated because defendants had orchestrated a global conspiracy to fix the prices of LCD panels. The district court certified to the court pursuant to 28 U.S.C. 1292(b) "the question whether the application of California antitrust law to claims against defendants based on purchases that occurred outside California would violate the Due Process Clause of the United States Constitution." Because the underlying conduct in this case involved not just the indirect purchase of price-fixed goods, but also the conspiratorial conduct that led to the sale of those goods, the court answered in the negative. To the extent a defendant's conspiratorial conduct was sufficiently connected to California, and was not "slight and casual," the application of California law to that conduct was "neither arbitrary nor fundamentally unfair," and the application of California law did not violate that defendant's rights under the Due Process Clause. Therefore, the court reversed the district court's order dismissing plaintiffs' California law claims and remanded for further proceedings.

Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.

The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.

While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.

An elite group of security technologists has concluded that the American and British governments cannot demand special access to encrypted communications without putting the world’s most confidential data and critical infrastructure in danger.A new paper from the group, made up of 14 of the world’s pre-eminent cryptographers and computer scientists, is a formidable salvo in a skirmish between intelligence and law enforcement leaders, and technologists and privacy advocates. After Edward J. Snowden’s revelations — with security breaches and awareness of nation-state surveillance at a record high and data moving online at breakneck speeds — encryption has emerged as a major issue in the debate over privacy rights.

That has put Silicon Valley at the center of a tug of war. Technology companies including Apple, Microsoft and Google have been moving to encrypt more of their corporate and customer data after learning that the National Security Agency and its counterparts were siphoning off digital communications and hacking into corporate data centers.

Yet law enforcement and intelligence agency leaders argue that such efforts thwart their ability to monitor kidnappers, terrorists and other adversaries. In Britain, Prime Minister David Cameron threatened to ban encrypted messages altogether. In the United States, Michael S. Rogers, the director of the N.S.A., proposed that technology companies be required to create a digital key to unlock encrypted data, but to divide the key into pieces and secure it so that no one person or government agency could use it alone.The encryption debate has left both sides bitterly divided and in fighting mode. The group of cryptographers deliberately issued its report a day before James B. Comey Jr., the director of the Federal Bureau of Investigation, and Sally Quillian Yates, the deputy attorney general at the Justice Department, are scheduled to testify before the Senate Judiciary Committee on the concerns that they and other government agencies have that encryption technologies will prevent them from effectively doing their jobs.

Vodafone, one of the world's largest mobile phone groups, has revealed the existence of secret wires that allow government agencies to listen to all conversations on its networks, saying they are widely used in some of the 29 countries in which it operates in Europe and beyond.The company has broken its silence on government surveillance in order to push back against the increasingly widespread use of phone and broadband networks to spy on citizens, and will publish its first Law Enforcement Disclosure Report on Friday. At 40,000 words, it is the most comprehensive survey yet of how governments monitor the conversations and whereabouts of their people.The company said wires had been connected directly to its network and those of other telecoms groups, allowing agencies to listen to or record live conversations and, in certain cases, track the whereabouts of a customer. Privacy campaigners said the revelations were a "nightmare scenario" that confirmed their worst fears on the extent of snooping.

Vodafone's group privacy officer, Stephen Deadman, said: "These pipes exist, the direct access model exists."We are making a call to end direct access as a means of government agencies obtaining people's communication data. Without an official warrant, there is no external visibility. If we receive a demand we can push back against the agency. The fact that a government has to issue a piece of paper is an important constraint on how powers are used."Vodafone is calling for all direct-access pipes to be disconnected, and for the laws that make them legal to be amended. It says governments should "discourage agencies and authorities from seeking direct access to an operator's communications infrastructure without a lawful mandate".

In America, Verizon and AT&T have published data, but only on their domestic operations. Deutsche Telekom in Germany and Telstra in Australia have also broken ground at home. Vodafone is the first to produce a global survey.

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:

Despite the use of the word “now” in that first sentence, however, the FBI has yet to do any such thing. It has not announced any such change, nor explained how it will implement it, or when. Media inquiries were greeted with stalling and, finally, a no comment — ostensibly on advice of legal counsel. “There is pending litigation that deals with a lot of the same questions you’re asking, out of the Ninth Circuit,” FBI spokesman Chris Allen told me. “So for now, we’ll just have to decline to comment.” FBI lawyers are working on a court filing for that case, and “it will address” the new policy, he said. He would not say when to expect it.

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.

On Sunday’s Face the Nation, Sen. Rand Paul was asked about President Trump’s accusation that President Obama ordered the NSA to wiretap his calls. The Kentucky senator expressed skepticism about the mechanics of Trump’s specific charge, saying: “I doubt that Trump was a target directly of any kind of eavesdropping.” But he then made a broader and more crucial point about how the U.S. government spies on Americans’ communications — a point that is deliberately obscured and concealed by U.S. government defenders. Paul explained how the NSA routinely and deliberately spies on Americans’ communications — listens to their calls and reads their emails — without a judicial warrant of any kind: The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls. And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn. They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.

Paul’s explanation is absolutely correct. That the NSA is empowered to spy on Americans’ communications without a warrant — in direct contravention of the core Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” — is the dirty little secret of the U.S. Surveillance State. As I documented at the height of the controversy over the Snowden reporting, top government officials — including President Obama — constantly deceived (and still deceive) the public by falsely telling them that their communications cannot be monitored without a warrant. Responding to the furor created over the first set of Snowden reports about domestic spying, Obama sought to reassure Americans by telling Charlie Rose: “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause.” The right-wing chairman of the House Intelligence Committee at the time, GOP Rep. Mike Rogers, echoed Obama, telling CNN the NSA “is not listening to Americans’ phone calls. If it did, it is illegal. It is breaking the law.” Those statements are categorically false. A key purpose of the new 2008 FISA law — which then-Senator Obama voted for during the 2008 general election after breaking his primary-race promise to filibuster it — was to legalize the once-controversial Bush/Cheney warrantless eavesdropping program, which the New York Times won a Pulitzer Prize for exposing in 2005. The crux of the Bush/Cheney controversy was that they ordered NSA to listen to Americans’ international telephone calls without warrants — which was illegal at the time — and the 2008 law purported to make that type of domestic warrantless spying legal.

The ECJ has ruled that governments cannot force telecom firms to keep all customer data. The ruling, which says the laws violate basic privacy rights, comes as governments call for greater powers for spy agencies.

The Court of Justice of the European Union (ECJ) ruled on Wednesday that laws allowing for the blanket collection and retention of location and traffic data are in breach of EU law. In their decision, the justices wrote that storing such data, which includes text message senders and recipients and call histories, allows for "very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained." "Such national legislation exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society," the Luxembourg-based court said. EU member states seeking to fight a "serious crime" are allowed to retain data in a targeted manner but must be subject to prior review by a court or independent body, the EU's top court said. Exceptions can be made in urgent cases. The decision came amidst growing calls from EU governments for security agencies to be given greater powers with the goal of preventing or investigating attacks. Privacy advocates, on the other hand, said mass data retention is ineffective in combating such crimes.

The court's decision was a response to challenges against data retention laws in Britain and Sweden on the ground that they were no longer valid after the court previously struck down an EU-wide data retention law in 2014. In Sweden, the law requires telecommunications companies to retain all their customers' traffic and location data, without exception, the ECJ said. British law allows authorities to ask firms to keep all communication data for a maximum 12-month period. In the UK, politicians filed a legal challenge against a surveillance law which passed in 2014, part of which was suspended by a British court. British lawmakers then passed the Investigatory Powers Act - the so-called "snooper's charter." A German data retention law, which came into effect at the end of 2015, requires telecommunications companies to store telephone and internet use for 10 weeks, after which point the data must be deleted. The German law also stipulates a shorter storage time of four weeks for location data which results from mobile phone calls. It remains to be seen what effect the ECJ ruling will have on Germany's blanket data retention measures.