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Paul Merrell

Information Awareness Office - Wikipedia, the free encyclopedia - 0 views

en.wikipedia.org/...Information_Awareness_Office

surveillance state NSA DARPA Poindexter lies

shared by Paul Merrell on 23 Jun 13 - No Cached
  • The Information Awareness Office (IAO) was established by the Defense Advanced Research Projects Agency (DARPA) in January 2002 to bring together several DARPA projects focused on applying surveillance and information technology to track and monitor terrorists and other asymmetric threats to U.S. national security, by achieving Total Information Awareness (TIA). This would be achieved by creating enormous computer databases to gather and store the personal information of everyone in the United States, including personal e-mails, social networks, credit card records, phone calls, medical records, and numerous other sources, without any requirement for a search warrant.[1] This information would then be analyzed to look for suspicious activities, connections between individuals, and "threats".[2] Additionally, the program included funding for biometric surveillance technologies that could identify and track individuals using surveillance cameras, and other methods.[2] Following public criticism that the development and deployment of this technology could potentially lead to a mass surveillance system, the IAO was defunded by Congress in 2003. However, several IAO projects continued to be funded, and merely run under different names.[3][4][5][6]
  • The IAO was established after Admiral John Poindexter, former United States National Security Advisor to President Ronald Reagan, and SAIC executive Brian Hicks approached the US Department of Defense with the idea for an information awareness program after the attacks of September 11, 2001.[5] Poindexter and Hicks had previously worked together on intelligence-technology programs for the Defense Advanced Research Projects Agency. DARPA agreed to host the program and appointed Poindexter to run it in 2002. The IAO began funding research and development of the Total Information Awareness (TIA) Program in February 2003 but renamed the program the Terrorism Information Awareness Program in May that year after an adverse media reaction to the program's implications for public surveillance. Although TIA was only one of several IAO projects, many critics and news reports conflated TIA with other related research projects of the IAO, with the result that TIA came in popular usage to stand for an entire subset of IAO programs. The TIA program itself was the "systems-level" program of the IAO that intended to integrate information technologies into a prototype system to provide tools to better detect, classify, and identify potential foreign terrorists with the goal to increase the probability that authorized agencies of the United States could preempt adverse actions. As a systems-level program of programs, TIA's goal was the creation of a "counterterrorism information architecture" that integrated technologies from other IAO programs (and elsewhere, as appropriate). The TIA program was researching, developing, and integrating technologies to virtually aggregate data, to follow subject-oriented link analysis, to develop descriptive and predictive models through data mining or human hypothesis, and to apply such models to additional datasets to identify terrorists and terrorist groups.
  • Among the other IAO programs that were intended to provide TIA with component data aggregation and automated analysis technologies were the Genisys, Genisys Privacy Protection, Evidence Extraction and Link Discovery, and Scalable Social Network Analysis programs. On August 2, 2002, Dr. Poindexter gave a speech at DARPAtech 2002 entitled "Overview of the Information Awareness Office"[7] in which he described the TIA program. In addition to the program itself, the involvement of Poindexter as director of the IAO also raised concerns among some, since he had been earlier convicted of lying to Congress and altering and destroying documents pertaining to the Iran-Contra Affair, although those convictions were later overturned on the grounds that the testimony used against him was protected.
  • ...1 more annotation...
  • On January 16, 2003, Senator Russ Feingold introduced legislation to suspend the activity of the IAO and the Total Information Awareness program pending a Congressional review of privacy issues involved.[8] A similar measure introduced by Senator Ron Wyden would have prohibited the IAO from operating within the United States unless specifically authorized to do so by Congress, and would have shut the IAO down entirely 60 days after passage unless either the Pentagon prepared a report to Congress assessing the impact of IAO activities on individual privacy and civil liberties or the President certified the program's research as vital to national security interests. In February 2003, Congress passed legislation suspending activities of the IAO pending a Congressional report of the office's activities (Consolidated Appropriations Resolution, 2003, No.108–7, Division M, §111(b) [signed Feb. 20, 2003]). In response to this legislation, DARPA provided Congress on May 20, 2003 with a report on its activities.[9] In this report, IAO changed the name of the program to the Terrorism Information Awareness Program and emphasized that the program was not designed to compile dossiers on US citizens, but rather to research and develop the tools that would allow authorized agencies to gather information on terrorist networks. Despite the name change and these assurances, the critics continued to see the system as prone to potential misuse or abuse. As a result House and Senate negotiators moved to prohibit further funding for the TIA program by adding provisions to the Department of Defense Appropriations Act, 2004[10] (signed into law by President Bush on October 1, 2003). Further, the Joint Explanatory Statement included in the conference committee report specifically directed that the IAO as program manager for TIA be terminated immediately.[11]
  • Paul Merrell on 23 Jun 13
     
    What became today's NSA programs of public concern were the brain child of Admiral John Poindexter and a private sector compadre. U.S. v. Poindexter, 951 F.2d 369, 390 (D.C. Cir. 1991). Poindexter had previously been convicted on five criminal counts involving lying to Congress and destruction and alteration of evidence.  His convictions were overturned on appeal on grounds that some of the testimony against him had been immunized from use in prosecution by Congress. There was no claim on appeal that any such evidence had been false.  86 U.S. v. Poindexter, 951 F.2d 369, 390 (D.C. Cir. 1991), . For far more detail of the evidence against Poindexter, see the August 4, 1993 final report by independent prosecutor Lawrence Walsh, Vol 1, Part 4 section 3, .  So one might say that today's controversial NSA activities were the idea of and conceived by a government official more than willing to lie to Congress and  to destroy and alter evidence. 
Paul Merrell

Court overturns $1.3B penalty against Bank of America for financial crisis - UPI.com - 0 views

www.upi.com/...1081464034724

banksters fraud BofA verdict-overturned

shared by Paul Merrell on 27 May 16 - No Cached
  • A federal appeals court on Monday dealt a blow to the Justice Department's efforts to punish big banks for contributing to the financial crisis nearly a decade ago by overturning a massive penalty against Bank of America. The U.S. Court of Appeals for the Second Circuit ruled that the federal government had not proven its case against the nation's second-largest bank -- and, accordingly, the North Carolina-based company does not have to pay the $1.27 billion penalty that stemmed from the case. The Department of Justice investigated and claimed that Bank of America had sold shoddy mortgages that contributed to the financial crisis of 2008-09. Investigators said BoA's Countrywide Financial Corp. and a program called "Hustle" focused on distributing a large number of mortgages but were careless with the quality of the loans. The company then misrepresented the mortgage loans when they were subsequently sold to Fannie May and Freddie Mac, Justice officials claimed. A jury found Bank of America liable for fraud in 2013 and ordered them to pay the massive fine. A $1 million civil penalty leveled against Countrywide executive Rebecca Mairone, one of the few individuals punished for the crisis, was also overturned by the appellate court.
Paul Merrell

Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourt... - 0 views

www.eff.org/...ff-victory-appeals-court-holds

surveillance state email 4th Amendment

shared by Paul Merrell on 28 Feb 14 - No Cached
  • In a landmark decision issued today in the criminal appeal of U.S. v. Warshak, the Sixth Circuit Court of Appeals has ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. Closely tracking arguments made by EFF in its amicus brief, the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.
  • Paul Merrell on 28 Feb 14
     
    From 2010, an important decision by the Sixth Circuit. 
Gary Edwards

Articles of Impeachment Against Obama - 0 views

blackrepublican.blogspot.com/...an-citizens-file-articles.html

Impeachment articles-of-impeachment

shared by Gary Edwards on 16 Aug 13 - No Cached
  • Gary Edwards on 16 Aug 13
     
    Sarasota, FL ( August 12, 2013) - The National Black Republican Association (NBRA) based in Sarasota, FL, headed by Chairman Frances Rice, filed Articles of Impeachment against President Barack Obama with the following language.   We, black American citizens, in order to free ourselves and our fellow citizens from governmental tyranny, do herewith submit these Articles of Impeachment to Congress for the removal of President Barack H. Obama, aka, Barry Soetoro, from office for his attack on liberty and commission of egregious acts of despotism that constitute high crimes and misdemeanors.   On July 4, 1776, the founders of our nation declared their independence from governmental tyranny and reaffirmed their faith in independence with the ratification of the Bill of Rights in 1791.   Asserting their right to break free from the tyranny of a nation that denied them the civil liberties that are our birthright, the founders declared:   "When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."  -  Declaration of Independence, July 4, 1776.   THE IMPEACHMENT POWER   Article II, Section IV of the United States Constitution provides: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."   THE ARTICLES OF IMPEACHMENT   In his conduct of the office of President of the United States, Barack H. Obama, aka Barry Soetoro, personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:   ARTICL
Paul Merrell

Third group wants in on Larry Klayman NSA case - POLITICO.com - 0 views

www.politico.com/...n-klayman-nsa-case-196194.html

surveillance-state NSA Klayman 215-metadata civil-liberties

shared by Paul Merrell on 30 Sep 14 - No Cached
  • A third civil liberties organization is asking a federal appeals court for time to defend the only federal court ruling challenging the legality of the National Security Agency's bulk collection of information on U.S. telephone calls. The Center for National Security Studies, a D.C.-based group which advocates for individual liberties and government transparency, asked the U.S. Court of Appeals for the D.C. Circuit Friday to allow the group time to argue that U.S. District Court Judge Richard Leon's ruling that the counterterrorism program appeared to be illegal was correct, albeit on different grounds than Leon identified. Leon found the program likely unconstitutional as a violation of Fourth Amendment protections against unreasonable searches and seizures. However, CNSS and other advocates have argued that Leon never should have reached the constitutional issues because the NSA's bulk telephone metadata program was never authorized by Congress.
  • Government lawyers and numerous judges from the Foreign Intelligence Surveillance Court have concluded that the Section 215 of the Patriot Act creates a legal basis for the program, but that depends on the debatable notion that all U.S. telephone data are "relevant" to future terrorism investigations. Critics of that rationale say it would allow the government to collect virtually any type of data because it could become useful in the future. CNSS's motion filed Friday asks for 10 minutes of argument time on Nov. 4, when the D.C. Circuit takes up the government's appeal of Leon's ruling as well as several related appeals. The motion (posted here) says both the Justice Department and the conservative legal activist who brought the underlying lawsuits, Larry Klayman, are opposing the request for extra time. Last week, two other organizations?—the American Civil Liberties Union and the Electronic Frontier Foundation—asked together to join in the arguments on Klayman's case. The government and Klayman did not oppose that motion.
  • Some opponents of the NSA surveillance program are clearly nervous about leaving the arguments against the program solely to Klayman, a longtime conservative activist known as a rhetorical bombthrower.  In an online commentary last week, Klayman called for the U.S. military to use tactical nuclear weapons against the Islamic State militant group. However, he predicted that President Barack Obama will not do so because he "simply has no stomach for killing his creed en masse." The D.C. Circuit has not yet ruled on either of the motions to join in next month's arguments.
Paul Merrell

US v. Davis, 754 F. 3d 1205 - Court of Appeals, 11th Circuit 2014 - Google Scholar - 0 views

scholar.google.com/scholar_case

surveillance state litigation 11th-Cir. cell-site-location-data civil liberties 4th Amendment

shared by Paul Merrell on 04 Nov 14 - No Cached
  • 754 F.3d 1205 (2014) UNITED STATES of America, Plaintiff-Appellee, v. Quartavious DAVIS, Defendant-Appellant. No. 12-12928. United States Court of Appeals, Eleventh Circuit. June 11, 2014.
  • The prosecution also offered records obtained from cell phone service providers evidencing that Davis and his co-defendants had placed and received cell phone calls in close proximity to the locations of each of the charged robberies around the 1210*1210 time that the robberies were committed, except for the Mayor's Jewelry store robbery. Davis preserved his objection to the cell phone location evidence and his claim that the government's obtaining such evidence without a warrant issued upon a showing of probable cause violated his rights under the Fourth Amendment.
  • The evidence obtained under the order and presented against Davis in the district court consisted of so-called "cell site location information." That location information 1211*1211 includes a record of calls made by the providers' customer, in this case Davis, and reveals which cell tower carried the call to or from the customer. The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record.
  • ...3 more annotations...
  • Davis's Fourth Amendment argument raises issues of first impression in this circuit, and not definitively decided elsewhere in the country. The evidence at issue consists of records obtained from cell phone service providers pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2703(c) and (d). Under that Act, the government can obtain from providers of electronic communication service records of subscriber services when the government has obtained either a warrant, § 2703(c)(A), or, as occurred in this case, a court order under subsection (d), see § 2703(c)(B). The order under subsection (d) does not require the government to show probable cause.
  • As we suggested above, the question whether cell site location information is protected by the Fourth Amendment guarantees against warrantless searches has never been determined by this court or the Supreme Court. Two circuits have considered the question, but not in the context of the use of the evidence in a criminal proceeding. Also, one of those opinions issued before the Supreme Court's decision in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the most relevant Supreme Court precedent.
  • In short, we hold that cell site location information is within the subscriber's reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.
  • Paul Merrell on 04 Nov 14
     
    11th U.S. Circuit Court of Appeals (Southeastern U.S.) holds that section 2703(d) of the Stored Communications Act, which purports to allow the obtaining of a search warrant without a showing of probable cause, violates the 4th Amendment warrant requirement as applied to cell tower "site location information." That should also apply to "fake" cell towers, like the Stingray device (IMSI catcher) used to obtain the same type of information. Likely doubly so because such devices trespass on a radio connection assigned by the FCC between the legitimate cell tower and the user's telephone.
Paul Merrell

Russia to appeal against US, EU sanctions to WTO - RT Business - 0 views

rt.com/...-wto-russia-sanctions-ulyukaev

war & peace Russia sanctions WTO

shared by Paul Merrell on 13 Sep 14 - No Cached
  • Russia considers the latest round of Western sanctions illegal and is ready to appeal against them to the World Trade Organization (WTO), Russian Economy Minister Aleksey Ulyukaev told reporters on Friday. “The latest round of sanctions provides grounds to appeal to the WTO. And we will appeal,” Ulyukaev said.
Paul Merrell

The Latest Rules on How Long NSA Can Keep Americans' Encrypted Data Look Too Familiar |... - 0 views

justsecurity.org/...s-hold-encrypted-data-familiar

surveillance state NSA IAA-2015 Sect-309 legislation

shared by Paul Merrell on 26 Jan 15 - No Cached
  • 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.
  • ...6 more annotations...
  • This language is broad, circular, and technically incoherent, so it takes some effort to parse appropriately. When the minimization procedures were disclosed in 2013, this language was interpreted by outside commentators to mean that NSA may keep all encrypted data that has been incidentally collected under Section 702 for at least as long as is necessary to decrypt that data. Is this the correct interpretation? I think so. It is important to realize that the language above isn’t just broad. It seems purposefully broad. The part regarding relevance seems to mirror the rationale NSA has used to justify its bulk phone records collection program. Under that program, all phone records were relevant because some of those records could be valuable to terrorism investigations and (allegedly) it isn’t possible to collect only those valuable records. This is the “to find a needle a haystack, you first have to have the haystack” argument. The same argument could be applied to encrypted data and might be at play here.
  • This exception doesn’t just apply to encrypted data that might be relevant to a current foreign intelligence investigation. It also applies to cases in which the encrypted data is likely to become relevant to a future intelligence requirement. This is some remarkably generous language. It seems one could justify keeping any type of encrypted data under this exception. Upon close reading, it is difficult to avoid the conclusion that these procedures were written carefully to allow NSA to collect and keep a broad category of encrypted data under the rationale that this data might contain the communications of NSA targets and that it might be decrypted in the future. If NSA isn’t doing this today, then whoever wrote these minimization procedures wanted to at least ensure that NSA has the authority to do this tomorrow.
  • There are a few additional observations that are worth making regarding these nominally new retention guidelines and Section 702 collection. First, the concept of incidental collection as it has typically been used makes very little sense when applied to encrypted data. The way that NSA’s Section 702 upstream “about” collection is understood to work is that technology installed on the network does some sort of pattern match on Internet traffic; say that an NSA target uses example@gmail.com to communicate. NSA would then search content of emails for references to example@gmail.com. This could notionally result in a lot of incidental collection of U.S. persons’ communications whenever the email that references example@gmail.com is somehow mixed together with emails that have nothing to do with the target. This type of incidental collection isn’t possible when the data is encrypted because it won’t be possible to search and find example@gmail.com in the body of an email. Instead, example@gmail.com will have been turned into some alternative, indecipherable string of bits on the network. Incidental collection shouldn’t occur because the pattern match can’t occur in the first place. This demonstrates that, when communications are encrypted, it will be much harder for NSA to search Internet traffic for a unique ID associated with a specific target.
  • This lends further credence to the conclusion above: rather than doing targeted collection against specific individuals, NSA is collecting, or plans to collect, a broad class of data that is encrypted. For example, NSA might collect all PGP encrypted emails or all Tor traffic. In those cases, NSA could search Internet traffic for patterns associated with specific types of communications, rather than specific individuals’ communications. This would technically meet the definition of incidental collection because such activity would result in the collection of communications of U.S. persons who aren’t the actual targets of surveillance. Collection of all Tor traffic would entail a lot of this “incidental” collection because the communications of NSA targets would be mixed with the communications of a large number of non-target U.S. persons. However, this “incidental” collection is inconsistent with how the term is typically used, which is to refer to over-collection resulting from targeted surveillance programs. If NSA were collecting all Tor traffic, that activity wouldn’t actually be targeted, and so any resulting over-collection wouldn’t actually be incidental. Moreover, greater use of encryption by the general public would result in an ever-growing amount of this type of incidental collection.
  • This type of collection would also be inconsistent with representations of Section 702 upstream collection that have been made to the public and to Congress. Intelligence officials have repeatedly suggested that search terms used as part of this program have a high degree of specificity. They have also argued that the program is an example of targeted rather than bulk collection. ODNI General Counsel Robert Litt, in a March 2014 meeting before the Privacy and Civil Liberties Oversight Board, stated that “there is either a misconception or a mischaracterization commonly repeated that Section 702 is a form of bulk collection. It is not bulk collection. It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.” The collection of Internet traffic based on patterns associated with types of communications would be bulk collection; more akin to NSA’s collection of phone records en mass than it is to targeted collection focused on specific individuals. Moreover, this type of collection would certainly fall within the definition of bulk collection provided just last week by the National Academy of Sciences: “collection in which a significant portion of the retained data pertains to identifiers that are not targets at the time of collection.”
  • The Section 702 minimization procedures, which will serve as a template for any new retention guidelines established for E.O. 12333 collection, create a large loophole for encrypted communications. With everything from email to Internet browsing to real-time communications moving to encrypted formats, an ever-growing amount of Internet traffic will fall within this loophole.
  • Paul Merrell on 26 Jan 15
     
    Tucked into a budget authorization act in December without press notice. Section 309 (the Act is linked from the article) appears to be very broad authority for the NSA to intercept any form of telephone or other electronic information in bulk. There are far more exceptions from the five-year retention limitation than the encrypted information exception. When reading this, keep in mind that the U.S. intelligence community plays semantic games to obfuscate what it does. One of its word plays is that communications are not "collected" until an analyst looks at or listens to partiuclar data, even though the data will be searched to find information countless times before it becomes "collected." That searching was the major basis for a decision by the U.S. District Court in Washington, D.C. that bulk collection of telephone communications was unconstitutional: Under the Fourth Amendment, a "search" or "seizure" requiring a judicial warrant occurs no later than when the information is intercepted. That case is on appeal, has been briefed and argued, and a decision could come any time now. Similar cases are pending in two other courts of appeals. Also, an important definition from the new Intelligence Authorization Act: "(a) DEFINITIONS.-In this section: (1) COVERED COMMUNICATION.-The term ''covered communication'' means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage."       
Gary Edwards

Seven Things You Should Know about the IRS Rule Challenged in King v. Burwell | Cato In... - 0 views

www.cato.org/...rule-challenged-king-v-burwell

ObamaCare King-v-Burwell

shared by Gary Edwards on 05 Mar 15 - No Cached
  • Gary Edwards on 05 Mar 15
     
    "By Michael F. Cannon and Jonathan H. Adler This article appeared on National Review (Online) on March 4, 2015. This week, the Supreme Court considers King v. Burwell. At issue is whether the IRS exceeded its authority under the Patient Protection and Affordable Care Act by issuing a final IRS rule that expanded the application of the Act's subsidies and mandates beyond the limits imposed by the statute. King v. Burwell is not a constitutional challenge. It challenges an IRS rule as being inconsistent with the Act it purports to implement. The case is a straightforward question of statutory interpretation. Here are seven things everyone needs to know about how the IRS developed the rule at issue in King v. Burwell. But first, a little background. If you're familiar with the case, you can skip to number one. Background Section 1311 of the Act directs states to establish health-insurance "Exchanges." Section 1321 directs the Secretary of Health and Human Services to establish Exchanges in states that "fail[]" to establish Exchanges. Confounding expectations, 38 states failed to establish Exchanges, in almost every case due to opposition to the Act. Section 1401 (creating I.R.C. § 36B) authorizes health-insurance subsidies (nominally, tax credits) "through an Exchange established by the State." The availability of those subsidies triggers tax penalties under the law's individual and employer mandates. In January 2014, the IRS began issuing those subsidies and imposing the resulting penalties through not only state-established Exchanges but also Exchanges established by the federal government as well (i.e., HealthCare.gov). In King v. Burwell, the plaintiffs allege that the IRS exceeded its powers under the Act by issuing a so-called final rule that purports to authorize subsidies in states with Exchanges established by the federal government. The plaintiffs claim that the rule and the subsidies being issued in such states are unlawful, because
Paul Merrell

Months After Appeals Argued, NSA Cases Twist in the Wind - US News - 0 views

www.usnews.com/...ed-nsa-cases-twist-in-the-wind

surveillance state NSA 215 litigation bulk-collection

shared by Paul Merrell on 15 Apr 15 - No Cached
  • Three cases that likely lay the groundwork for a major privacy battle at the U.S. Supreme Court are pending before federal appeals courts, whose judges are taking their time announcing whether they believe the dragnet collection of Americans' phone records is legal. It’s been more than five months since the American Civil Liberties Union argued against the National Security Agency program in New York, three months since legal activist Larry Klayman defended his thus far unprecedented preliminary injunction win in Washington, D.C., and two months since Idaho nurse Anna Smith’s case was heard by appeals judges in Seattle. At the district court level, judges handed down decisions about a month after oral arguments in the cases. It’s unclear what accounts for the delay. It’s possible judges are meticulously crafting opinions that are likely to receive wide coverage, or that members of the three-judge panels are clashing on the appropriate decision.
  • Attorneys involved in the cases understandably are reluctant to criticize the courts, but all express hope for speedy resolution of their fights against alleged violations of Americans’ Fourth Amendment rights.
  • Though it’s difficult to accurately predict court decisions based on oral arguments, opponents of the mass surveillance program may have reason for optimism.
  • ...1 more annotation...
  • Two executive branch review panels have found the dragnet phone program has had minimal value for catching terrorists, its stated purpose. After years of presiding over the collection and months of publicly defending it, President Barack Obama pivoted last year and asked Congress to pass legislation ending the program. A measure to do so failed last year.
clausonlaw22

How Much Does Mental Health Disability Pay In 2023 - 0 views

www.clausonlaw.com/...-health-disability-pay-in-2023

Social Security Disability Lawyers SSD Social Security attorneys

shared by clausonlaw22 on 31 Mar 23 - No Cached
  • clausonlaw22 on 31 Mar 23
     
    How Much Does Mental Health Disability Pay In 2023 Social Security Disability Insurance (SSDI or SSD) is the sole source of income for millions of Americans who are unable to work due to a non-work-related injury or illness. SSDI benefits are available only to workers and former workers with a substantial employment history. Both physical and mental disabilities are covered under the Social Security Act. While SSDI pays the same benefits for qualifying mental impairments as it does for physical impairments, the amount each individual receives in benefits depends on their history of earnings. This blog post will explain how Social Security defines qualifying disabilities, including mental impairments, and determines each individual's benefit payment. At The Clauson Law Firm, we know how important it is for every disability applicant and benefit recipient to understand how their benefits are arrived at, what affects their continued benefits, and how their benefits can change over time. Contact Clauson Law today if you have questions about qualifying for SSDI benefits or need help filing a claim or appealing a denial. We've helped thousands of disabled people across the U.S. with their disability claims. Mental Impairments And Social Security Disability More than 40% of SSD cases in the United States have some mental health or intellectual impairment as a component in the claim. Mental health impairments can result from an almost unlimited array of circumstances, including traumatic stress; depression; genetic predisposition to depression, bipolar disorder, or schizophrenia; or traumatic brain injury (TBI); one of the many forms of dementia; and others. The ways in which mental impairments affect the person suffering can often interfere with their ability to perform work on a regular basis. These are discussed in detail in the section "Common Mental Disabilities that May Qualify for SSDI" below. But first, let's look at how you qualify for SSD benefits and how you
  • clausonlaw22 on 31 Mar 23
     
    How Much Does Mental Health Disability Pay In 2023
Paul Merrell

Edward Snowden: NSA whistleblower answers reader questions | World news | guardian.co.uk - 0 views

www.guardian.co.uk/...nowden-nsa-files-whistleblower

surveillance state NSA Snowden Obama state-secrets must-read

shared by Paul Merrell on 18 Jun 13 - No Cached
  • The 29-year-old former NSA contractor and source of the Guardian's NSA files coverage will – with the help of Glenn Greenwald – take your questions today on why he revealed the NSA's top-secret surveillance of US citizens, the international storm that has ensued, and the uncertain future he now faces. Ask him anything.
  • I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target. Not only that, when NSA makes a technical mistake during an exploitation operation, critical systems crash. Congress hasn't declared war on the countries - the majority of them are our allies - but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we're not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the "consent of the governed" is meaningless.
  • I was debriefed by Glenn and his peers over a number of days, and not all of those conversations were recorded. The statement I made about earnings was that $200,000 was my "career high" salary. I had to take pay cuts in the course of pursuing specific work. Booz was not the most I've been paid.
  • ...17 more annotations...
  • 1) More detail on how direct NSA's accesses are is coming, but in general, the reality is this: if an NSA, FBI, CIA, DIA, etc analyst has access to query raw SIGINT databases, they can enter and get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on - it's all the same. The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications. For at least GCHQ, the number of audited queries is only 5% of those performed.
  • Obama's campaign promises and election gave me faith that he would lead us toward fixing the problems he outlined in his quest for votes. Many Americans felt similarly. Unfortunately, shortly after assuming power, he closed the door on investigating systemic violations of law, deepened and expanded several abusive programs, and refused to spend the political capital to end the kind of human rights violations like we see in Guantanamo, where men still sit without charge.
  • All I can say right now is the US Government is not going to be able to cover this up by jailing or murdering me. Truth is coming, and it cannot be stopped
  • NSA likes to use "domestic" as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as "incidental" collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of "warranted" intercept, it's important to understand the intelligence community doesn't always deal with what you would consider a "real" warrant like a Police department would have to, the "warrant" is more of a templated form they fill out and send to a reliable judge with a rubber stamp.
  • Glenn Greenwald follow up: When you say "someone at NSA still has the content of your communications" - what do you mean? Do you mean they have a record of it, or the actual content? Both. If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time - and can be extended further with waivers rather than warrants.
  • What are your thoughts on Google's and Facebook's denials? Do you think that they're honestly in the dark about PRISM, or do you think they're compelled to lie? Perhaps this is a better question to a lawyer like Greenwald, but: If you're presented with a secret order that you're forbidding to reveal the existence of, what will they actually do if you simply refuse to comply (without revealing the order)? Answer: Their denials went through several revisions as it become more and more clear they were misleading and included identical, specific language across companies. As a result of these disclosures and the clout of these companies, we're finally beginning to see more transparency and better details about these programs for the first time since their inception. They are legally compelled to comply and maintain their silence in regard to specifics of the program, but that does not comply them from ethical obligation. If for example Facebook, Google, Microsoft, and Apple refused to provide this cooperation with the Intelligence Community, what do you think the government would do? Shut them down?
  • Some skepticism exists about certain of your claims, including this: I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email. Do you stand by that, and if so, could you elaborate? Answer: Yes, I stand by it. US Persons do enjoy limited policy protections (and again, it's important to understand that policy protection is no protection - policy is a one-way ratchet that only loosens) and one very weak technical protection - a near-the-front-end filter at our ingestion points. The filter is constantly out of date, is set at what is euphemistically referred to as the "widest allowable aperture," and can be stripped out at any time. Even with the filter, US comms get ingested, and even more so as soon as they leave the border. Your protected communications shouldn't stop being protected communications just because of the IP they're tagged with. More fundamentally, the "US Persons" protection in general is a distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it's only victimizing 95% of the world instead of 100%. Our founders did not write that "We hold these Truths to be self-evident, that all US Persons are created equal."
  • Edward, there is rampant speculation, outpacing facts, that you have or will provide classified US information to the Chinese or other governments in exchange for asylum. Have/will you? Answer: This is a predictable smear that I anticipated before going public, as the US media has a knee-jerk "RED CHINA!" reaction to anything involving HK or the PRC, and is intended to distract from the issue of US government misconduct. Ask yourself: if I were a Chinese spy, why wouldn't I have flown directly into Beijing? I could be living in a palace petting a phoenix by now.
  • US officials say this every time there's a public discussion that could limit their authority. US officials also provide misleading or directly false assertions about the value of these programs, as they did just recently with the Zazi case, which court documents clearly show was not unveiled by PRISM. Journalists should ask a specific question: since these programs began operation shortly after September 11th, how many terrorist attacks were prevented SOLELY by information derived from this suspicionless surveillance that could not be gained via any other source? Then ask how many individual communications were ingested to acheive that, and ask yourself if it was worth it. Bathtub falls and police officers kill more Americans than terrorism, yet we've been asked to sacrifice our most sacred rights for fear of falling victim to it. Further, it's important to bear in mind I'm being called a traitor by men like former Vice President Dick Cheney. This is a man who gave us the warrantless wiretapping scheme as a kind of atrocity warm-up on the way to deceitfully engineering a conflict that has killed over 4,400 and maimed nearly 32,000 Americans, as well as leaving over 100,000 Iraqis dead. Being called a traitor by Dick Cheney is the highest honor you can give an American, and the more panicked talk we hear from people like him, Feinstein, and King, the better off we all are. If they had taught a class on how to be the kind of citizen Dick Cheney worries about, I would have finished high school.
  • Is encrypting my email any good at defeating the NSA survelielance? Id my data protected by standard encryption? Answer: Encryption works. Properly implemented strong crypto systems are one of the few things that you can rely on. Unfortunately, endpoint security is so terrifically weak that NSA can frequently find ways around it. 
  • Binney, Drake, Kiriakou, and Manning are all examples of how overly-harsh responses to public-interest whistle-blowing only escalate the scale, scope, and skill involved in future disclosures. Citizens with a conscience are not going to ignore wrong-doing simply because they'll be destroyed for it: the conscience forbids it. Instead, these draconian responses simply build better whistleblowers. If the Obama administration responds with an even harsher hand against me, they can be assured that they'll soon find themselves facing an equally harsh public response. This disclosure provides Obama an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men. He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it. I would advise he personally call for a special committee to review these interception programs, repudiate the dangerous "State Secrets" privilege, and, upon preparing to leave office, begin a tradition for all Presidents forthwith to demonstrate their respect for the law by appointing a special investigator to review the policies of their years in office for any wrongdoing. There can be no faith in government if our highest offices are excused from scrutiny - they should be setting the example of transparency. 
  • What would you say to others who are in a position to leak classified information that could improve public understanding of the intelligence apparatus of the USA and its effect on civil liberties?
  • This country is worth dying for.
  • My question: given the enormity of what you are facing now in terms of repercussions, can you describe the exact moment when you knew you absolutely were going to do this, no matter the fallout, and what it now feels like to be living in a post-revelation world? Or was it a series of moments that culminated in action? I think it might help other people contemplating becoming whistleblowers if they knew what the ah-ha moment was like. Again, thanks for your courage and heroism. Answer: I imagine everyone's experience is different, but for me, there was no single moment. It was seeing a continuing litany of lies from senior officials to Congress - and therefore the American people - and the realization that that Congress, specifically the Gang of Eight, wholly supported the lies that compelled me to act. Seeing someone in the position of James Clapper - the Director of National Intelligence - baldly lying to the public without repercussion is the evidence of a subverted democracy. The consent of the governed is not consent if it is not informed.
  • Regarding whether you have secretly given classified information to the Chinese government, some are saying you didn't answer clearly - can you give a flat no? Answer: No. I have had no contact with the Chinese government. Just like with the Guardian and the Washington Post, I only work with journalists.
  • So far are things going the way you thought they would regarding a public debate? – tikkamasala Answer: Initially I was very encouraged. Unfortunately, the mainstream media now seems far more interested in what I said when I was 17 or what my girlfriend looks like rather than, say, the largest program of suspicionless surveillance in human history.
  • Thanks to everyone for their support, and remember that just because you are not the target of a surveillance program does not make it okay. The US Person / foreigner distinction is not a reasonable substitute for individualized suspicion, and is only applied to improve support for the program. This is the precise reason that NSA provides Congress with a special immunity to its surveillance.
  • Paul Merrell on 18 Jun 13
     
    I particularly liked this Snowden observation as an idea for a constitutional amendment: "This disclosure provides Obama an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men. He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it. I would advise he personally call for a special committee to review these interception programs, repudiate the dangerous "State Secrets" privilege, and, upon preparing to leave office, begin a tradition for all Presidents forthwith to demonstrate their respect for the law by appointing a special investigator to review the policies of their years in office for any wrongdoing. There can be no faith in government if our highest offices are excused from scrutiny - they should be setting the example of transparency. " Repeal of the State Secrets privilege would require a constitutional amendment because the Supreme Court decided back when that it is inherent in the President's power as commander in chief of the military forces. In other words, neither Congress nor the courts can second-guess such claims, a huge contributing factor in the over-classification of government records when the real reason is to protect bureaucrats from embarrassment, civil rights suits, and criminal prosecution. It is no accident that we have an Executive Branch that is out-of-control, waging dictatorial powers under the protection of the State Secrets privilege. 
Paul Merrell

Saudi Arabia in Search of a New Course | nsnbc international - 0 views

nsnbc.me/...abia-in-search-of-a-new-course

war & peace economic war Saudis oil-prices Syria

shared by Paul Merrell on 19 Oct 15 - No Cached
  • Saudi Arabia, one of the wealthiest countries in the world, is experiencing serious financial problems. The ongoing plummeting of oil prices is forcing the Saudis to be more careful with money. Tens of billions of dollars invested abroad are making a return to the kingdom. In July 2015, Saudi Arabia’s authorities, for the first time in 8 years, issued governmental bonds worth $4 bn.
  • Bloomberg reports that Saudi Arabia has already withdrawn $50-70 bn, which it had previously invested worldwide through management companies. It is noteworthy that the country has been withdrawing funds for the past six months. For example, Saudi Arabia’s SAMA Foreign Holdings reached its maximum in August 2014, having amounted to $737 bn. But since then, the fund has been shrinking because oil prices have dropped more than twice in this period. Saudi Arabia’s budget deficit is forecast to reach 20%; however, reduction of expenditures still remains a sensitive topic. In the context of the continuous fall in oil prices, Riyadh has worked out a plan to gradually reduce public spending to cope with a sharp decrease in budget revenues caused by the slumping oil prices. For example, Saudi Arabia’s Ministry of Finance has issued an order prescribing all state companies to temporary stop hiring new employees and launching new projects until the end of the fiscal year. In addition, the government procurement of new cars and furniture has also been put on hold as well as the signing and approval of new lease agreements for state institutions and enterprises. The expropriation of plots of land for the purpose of the subsequent extraction of oil has also been suspended throughout the country. The Ministry of Finance has, at the same time, demanded an acceleration in the collection procedure of oil revenues.
  • “To prove that the country indeed has a sound fiscal discipline, the government has to take steps to cut expenditures in the 4th quarter. Subsequently Saudi Arabia will be compelled to find new ways to reduce expenditures and boost efficiency in order to assure there will be no budget deficit in 2016,” John Sfakianakis, Director of the Middle East Division of the Ashmore Group, said in his interview to Bloomberg. It should be pointed out in that regard that oil revenues comprise about 90% of Saudi Arabia’s budget, and the landslide of oil prices of over 40% within the last 12 months adversely affected the country’s financial standing. And, although the kingdom’s debt burden remains one of the lowest in the world (less than 2% of the GDP), the kingdom’s international assets have been consistently shrinking for the last nine months and reached a two year minimum. This situation directly influences the policy of OPEC since Saudi Arabia (which extracts almost 30% of the OPEC’s oil, positions itself as an extremely influential raw material supplier, maintains powerful military forces, and has its own global ambitions, immense resources and substantial diplomatic experience) de facto plays the role of the shadow leader of this organization. At times siding with the US, and then pursuing its own interests, the kingdom has assumed such an influential position in the international community that other countries revere its opinion, and as for the last oil crisis, Saudi Arabia is seen as its key player.
  • ...3 more annotations...
  • And, based on the information provided by the international mass media, the Saudi leadership has split in their opinion on whether to continue funding Syria or to begin reducing their financial commitment. “Riyadh is facing a choice: to give more support to the moderate opposition or to look for a compromise,” an American expert on national security, James Farvell, wrote in The National Interest. The expert explained that if Saudis offer more support, that would trigger a confrontation with Russia, but if they side with Moscow, Russia’s regional influence might be reinforced and that might, in turn, challenge Saudi Arabia’s interests. Because of this dilemma, controversial information regarding Saudi’s decisions are appearing in the press. On the one hand, Saudi Arabia was one of the first to condemn Russia after the beginning of the Russian military operation in Syria on September 30. It accused Russia of bombing the troops of moderate opposition instead of ISIS. “These attacks resulted in the deaths of numerous innocent victims. We call for a stop it immediately,” demagogically and groundlessly said the representative of Saudi Arabia Abdallah al-Muallimi in the UN. Simultaneously 53 religious leaders signed an online appeal to support a jihad against the Syrian authorities as well as the presence of Russia and Iran in this country. They appealed to the countries of the Muslim world to render “moral, financial, military and political support to those who are called the ‘holy warriors of Syria’.” The authors of the appeal explicitly stated that if they fail, the other Sunni states in the region, and, first of all, Saudi Arabia will be the next victims.
  • With reference to a high-ranking Saudi official who wished to remain anonymous, the BBC stated that armed groups of the so-called moderate opposition would receive new, high-tech weapons, including tank destroyers. Jaish al-Fath, The Free Syrian Army and The Southern Front moderate opposition groups will also receive support. According to the source, it is quite likely that the “moderate opposition” in Syria will receive surface-to-air systems as well. Keeping in mind that Russia is carrying out air strikes across not only the facilities of ISIS, but also the above listed groups, a scenario when Saudis turn their weapon against Russian aviation is quite possible. On the other hand, a curious document, apparently a copy of the instructions issued for the embassies of Saudi Arabia in the Middle Eastern countries, has been uploaded to the Internet. The main idea of the documents is that all the diplomatic representative offices should gradually cease financial support of the armed Syrian opposition, apparently owing to the low efficiency of militants’ activities. The authenticity of the document raises certain doubts, as is always the case with such documents. However, specialists in the Arabic language concluded that the text was written by a native speaker, and that the document’s design conforms to the style adopted in Saudi Arabia. It shouldn’t be ruled out that the drying up of the source of funding, that militants used to receive from the Saudis, against the backdrop of a certain degree of success of the government troops as well as the increasing military and technical assistance to Syria on the part of Russia, have convinced many “oppositionists” to surrender and change masters. This process is expected to only accelerate in the future.
  • On Sunday, October 11, the Defense Minister, Mohammed bin Salman, visited Sochi. The search for common ground on the issues related to the situation in Syria was the main theme of the meeting held by the son of the Saudi king and Vladimir Putin. The parties also discussed the prospects of their economic cooperation. And, since Saudi Arabia is currently experiencing certain financial difficulties and is in the “clutches” of economic uncertainty, this topic was of a special interest. It was the second visit to the Russian Federation of the Saudi prince, who currently carries out sensitive missions related to the complex relations between the two countries. It should be noted that King of Saudi Arabia Salman bin Abdulaziz Al Saud has been admitted to hospital in a critical condition and is currently being kept in the intensive care unit of the King Faisal royal hospital in Riyadh.
Paul Merrell

Court Refuses to Reinstate Travel Ban, Dealing Trump Another Legal Loss - The New York ... - 0 views

www.nytimes.com/...ls-court-trump-travel-ban.html

Trump immigration litigation 9th-Circuit

shared by Paul Merrell on 10 Feb 17 - No Cached
  • A federal appeals panel on Thursday unanimously rejected President Trump’s bid to reinstate his ban on travel into the United States from seven largely Muslim nations, a sweeping rebuke of the administration’s claim that the courts have no role as a check on the president.The three-judge panel, suggesting that the ban did not advance national security, said the administration had shown “no evidence” that anyone from the seven nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — had committed terrorist acts in the United States.The ruling also rejected Mr. Trump’s claim that courts are powerless to review a president’s national security assessments. Judges have a crucial role to play in a constitutional democracy, the court said.“It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
  • The decision was handed down by the United States Court of Appeals for the Ninth Circuit, in San Francisco. It upheld a ruling last Friday by a federal district judge, James L. Robart, who blocked key parts of the travel ban, allowing thousands of foreigners to enter the country.
  • Paul Merrell on 10 Feb 17
     
    As I expected.
Paul Merrell

Sentinel ruling may hurt MF Global clients | Reuters - 0 views

www.reuters.com/...decision-idUSBRE87900T20120810

banksters financial-collapse bankruptcy

shared by Paul Merrell on 15 Aug 12 - No Cached
  • (Reuters) - A ruling in the case of failed futures brokerage Sentinel Management Group could make it more difficult for customers to recoup money lost in the much larger collapse of MF Global, according to Sentinel's bankruptcy trustee. A federal appeals court on Thursday upheld a ruling that puts Bank of New York Mellon ahead of former customers of Sentinel in the line of those seeking the return of money lost in the 2007 failure of the suburban Chicago-based futures broker.The appeals court affirmed an earlier district court ruling that the bank had a "secured position" on a $312 million loan it gave to Sentinel, which turned out to have been secured by customer money.
Paul Merrell

Barnhardt.biz - Commodity Brokerage - 0 views

barnhardt.biz

banksters financial-collapse bankruptcy

shared by Paul Merrell on 15 Aug 12 - No Cached
  • CLICK HERE for the Sentinel Federal Appeals Court Ruling of August 9, 2012 This commentary came from the fellow who sent this to me. I think it is spot-on. Miss Barnhardt, I thought you might be interested in reading the actual opinion of the In Re Sentinel Group case, which I have attached in PDF. It was very hard to find for some reason, and I had to access my Westlaw account in order to get it. I think it would be well worth your time to read it, as I am afraid that it appears to confirm what you have been saying. The entire case reads like an after-the-fact rationalization of a predetermined conclusion. Years ago when I was with a different firm, I worked on numerous major institutional fraud and auditing cases, and I cannot recall a ruling even remotely similar - let alone from a federal court of appeals.
  • Please pay particular attention to the section on equitable subordination, on pages 6 through 8. Unbelievably, the court acknowledged in that section that even though some of the bankers lied under oath during the trial, that fact did not prove "sufficiently egregious" actions on the part of the bank. I will quote the opinion: "Instead of finding that their testimony [i.e. their lies] justified a finding of egregious bank behavior, the district court essentially found that the bank officials were such artless liars that they couldn't have been concealing deliberate wrongdoing." See page 7, column 2.
  • So in other words, a U.S. Court of Appeals has found that if a banker lies under oath during a trial, that fact proves that the bank was innocent of any misconduct with respect to the subject matter of those lies. Did we get transported to bizarro world without knowing it?
Paul Merrell

US v. Warshak, 631 F. 3d 266 - Court of Appeals, 6th Circuit 2010 - Google Scholar - 0 views

scholar.google.com/scholar_case

surveillance state Stored-Communications-Act 4th Amendment

shared by Paul Merrell on 14 Feb 14 - No Cached
  • While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. Ibid. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private. See Katz, 389 U.S. at 351, 88 S.Ct. 507 ("[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."). Given the fundamental similarities between email and traditional forms of communication, it would defy common sense 286*286 to afford emails lesser Fourth Amendment protection. See Patricia L. Bellia & Susan Freiwald, Fourth Amendment Protection for Stored E-Mail, 2008 U. Chi. Legal F. 121, 135 (2008) (recognizing the need to "eliminate the strangely disparate treatment of mailed and telephonic communications on the one hand and electronic communications on the other"); City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 2619, 2631, 177 L.Ed.2d 216 (2010) (implying that "a search of [an individual's] personal e-mail account" would be just as intrusive as "a wiretap on his home phone line"); United States v. Forrester, 512 F.3d 500, 511 (9th Cir.2008) (holding that "[t]he privacy interests in [mail and email] are identical"). Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age.
  • Over the last decade, email has become "so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification." Quon, 130 S.Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313, 92 S.Ct. 2125; United States v. Waller, 581 F.2d 585, 587 (6th Cir.1978) (noting the Fourth Amendment's role in protecting "private communications"). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 ("It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.").
  • If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP's servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652; Katz, 389 U.S. at 353, 88 S.Ct. 507. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception. In Warshak I, the government argued that this conclusion was improper, pointing to the fact that NuVox contractually reserved the right to access Warshak's emails for certain purposes. While we acknowledge that a subscriber agreement might, in some cases, be sweeping enough to defeat a reasonable expectation of privacy in the contents of an email account, see Warshak I, 490 F.3d at 473; Warshak II, 532 F.3d at 526-27, we doubt that will be the case in most situations, and it is certainly not the case here.
  • ...1 more annotation...
  • Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails "that are stored with, or sent or received through, a commercial ISP." Warshak I, 490 F.3d at 473; see Forrester, 512 F.3d at 511 (suggesting that "[t]he contents [of email messages] may deserve Fourth Amendment protection"). The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak's emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.
  • Paul Merrell on 14 Feb 14
     
    A 2010 decision by the U.S. 6th Circuit Court of Appeals that I had missed up to now. It finds the Stored Communications Act's section that excuses email in the possession of an ISP for more than 180 days from the 4th Amendment's judicial warrant clause. There may yet be hope for cloud computing in the U.S. 
Paul Merrell

NSA grapples with huge increase in records requests - 0 views

www.usatoday.com/...3519889

surveillance state NSA litigation constitutional law

shared by Paul Merrell on 19 Nov 13 - No Cached
  • Fueled by the Edward Snowden scandal, more Americans than ever are asking the National Security Agency if their personal life is being spied on.And the NSA has a very direct answer for them: Tough luck, we're not telling you.Americans are inundating the NSA with open-records requests, leading to an 888% increase in such inquiries in the past fiscal year. Anyone asking is getting a standard pre-written letter saying the NSA can neither confirm nor deny that any information has been gathered."This was the largest spike we've ever had," said Pamela Phillips, the chief of the NSA Freedom of Information Act and Privacy Act Office, which handles all records requests to the agency. "We've had requests from individuals who want any records we have on their phone calls, their phone numbers, their e-mail addresses, their IP addresses, anything like that."
  • News reports of the NSA's surveillance program motivates most inquirers, she said.During the first quarter of the NSA's last fiscal year, which went from October to December 2012, it received 257 open-records requests. The next quarter, it received 241. However, on June 6, at the end of NSA's third fiscal quarter, news of Snowden's leaks hit the press, and the agency got 1,302 requests.In the next three months, the NSA received 2,538 requests. The spike has continued into the fall months and has overwhelmed her staff, Phillips said
  • The first court challenge to the federal government's mass surveillance of Americans' phone and Internet records opened Monday with two potential strikes against it, but the judge predicted it could go all the way to the Supreme Court.Federal District Court Judge Richard Leon expressed concern that conservative activist Larry Klayman and others lacked standing to bring the case and that his court lacked jurisdiction -- factors that could further insulate the spy programs from public oversight."To me, this is the overarching question," Leon said, referring to "this court's authority or lack thereof to inject itself into this situation."
  • ...3 more annotations...
  • The two programs, made public earlier this year by Edward Snowden, a former National Security Agency contractor now living in Russia, are reviewed by a top-secret court under the Foreign Intelligence Surveillance Act. But challengers from the political right and left are trying to have that court's periodic approvals circumvented.From the right on Monday came Klayman, a former Reagan administration lawyer who leads the advocacy group Freedom Watch. In an hour-long hearing, he called Leon "the last guard ... the last sentry to the tyranny in this country."But Justice Department lawyer James Gilligan said Klayman lacked standing to bring the case because he cannot prove the NSA examined his phone or Internet records. Gilligan also said Leon cannot review the statutory authority granted by Congress under FISA -- only the secret courts and the Supreme Court have that power.
  • Coincidentally, the Supreme Court on Monday turned down a chance to review the NSA's harvesting of Verizon phone records in a case brought by the watchdog group Electronic Privacy Information Center. The justices offered no reason for their decision.The law "makes it very difficult to challenge these determinations,' said Marc Rotenberg, president of the privacy group.Another challenge, brought by the American Civil Liberties Union, will be heard by U.S. District Court Judge William Pauley in Manhattan on Friday. Those two cases are likely to be appealed "upstairs," Leon said -- to appeals courts and possibly the Supreme Court.Both Klayman and the ACLU are seeking preliminary injunctions that would put a halt to the NSA surveillance. Both have targeted a program that sweeps up domestic telephone records, even though the targets are foreign terrorists. Klayman also is challenging a separate program that goes after cellphone and computer data from major wireless companies and Internet service providers.
  • Amnesty International and a coalition of lawyers, journalists and others brought the last Supreme Court challenge to government surveillance programs in 2012. But in February, the justices ruled 5-4 that the challengers lacked standing because they could not prove they had been wiretapped.Even if judges rule against Klayman and the ACLU, the controversial programs may get a full court test because the Justice Department has begun notifying criminal defendants whose arrests were based on warrantless surveillance. That makes the prospect of a future Supreme Court case more likely.
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