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Paul Merrell

CURIA - Documents - 0 views

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surveillance state EU Court-of-Justice data-retention data privacy

shared by Paul Merrell on 19 Jul 14 - No Cached
  • 37      It must be stated that the interference caused by Directive 2006/24 with the fundamental rights laid down in Articles 7 and 8 of the Charter is, as the Advocate General has also pointed out, in particular, in paragraphs 77 and 80 of his Opinion, wide-ranging, and it must be considered to be particularly serious. Furthermore, as the Advocate General has pointed out in paragraphs 52 and 72 of his Opinion, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.
  • 43      In this respect, it is apparent from recital 7 in the preamble to Directive 2006/24 that, because of the significant growth in the possibilities afforded by electronic communications, the Justice and Home Affairs Council of 19 December 2002 concluded that data relating to the use of electronic communications are particularly important and therefore a valuable tool in the prevention of offences and the fight against crime, in particular organised crime. 44      It must therefore be held that the retention of data for the purpose of allowing the competent national authorities to have possible access to those data, as required by Directive 2006/24, genuinely satisfies an objective of general interest.45      In those circumstances, it is necessary to verify the proportionality of the interference found to exist.46      In that regard, according to the settled case-law of the Court, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is appropriate and necessary in order to achieve those objectives (see, to that effect, Case C‑343/09 Afton Chemical EU:C:2010:419, paragraph 45; Volker und Markus Schecke and Eifert EU:C:2010:662, paragraph 74; Cases C‑581/10 and C‑629/10 Nelson and Others EU:C:2012:657, paragraph 71; Case C‑283/11 Sky Österreich EU:C:2013:28, paragraph 50; and Case C‑101/12 Schaible EU:C:2013:661, paragraph 29).
  • 67      Article 7 of Directive 2006/24, read in conjunction with Article 4(1) of Directive 2002/58 and the second subparagraph of Article 17(1) of Directive 95/46, does not ensure that a particularly high level of protection and security is applied by those providers by means of technical and organisational measures, but permits those providers in particular to have regard to economic considerations when determining the level of security which they apply, as regards the costs of implementing security measures. In particular, Directive 2006/24 does not ensure the irreversible destruction of the data at the end of the data retention period.68      In the second place, it should be added that that directive does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data (see, to that effect, Case C‑614/10 Commission v Austria EU:C:2012:631, paragraph 37).69      Having regard to all the foregoing considerations, it must be held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter.
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  • 58      Directive 2006/24 affects, in a comprehensive manner, all persons using electronic communications services, but without the persons whose data are retained being, even indirectly, in a situation which is liable to give rise to criminal prosecutions. It therefore applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Furthermore, it does not provide for any exception, with the result that it applies even to persons whose communications are subject, according to rules of national law, to the obligation of professional secrecy. 59      Moreover, whilst seeking to contribute to the fight against serious crime, Directive 2006/24 does not require any relationship between the data whose retention is provided for and a threat to public security and, in particular, it is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.
  • 1        These requests for a preliminary ruling concern the validity of Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).
  • Digital Rights Ireland Ltd (C‑293/12)vMinister for Communications, Marine and Natural Resources,Minister for Justice, Equality and Law Reform,Commissioner of the Garda Síochána,Ireland,The Attorney General,intervener:Irish Human Rights Commission, andKärntner Landesregierung (C‑594/12),Michael Seitlinger,Christof Tschohl and others,
  • JUDGMENT OF THE COURT (Grand Chamber)8 April 2014 (*)(Electronic communications — Directive 2006/24/EC — Publicly available electronic communications services or public communications networks services — Retention of data generated or processed in connection with the provision of such services — Validity — Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union)In Joined Cases C‑293/12 and C‑594/12,
  • 34      As a result, the obligation imposed by Articles 3 and 6 of Directive 2006/24 on providers of publicly available electronic communications services or of public communications networks to retain, for a certain period, data relating to a person’s private life and to his communications, such as those referred to in Article 5 of the directive, constitutes in itself an interference with the rights guaranteed by Article 7 of the Charter. 35      Furthermore, the access of the competent national authorities to the data constitutes a further interference with that fundamental right (see, as regards Article 8 of the ECHR, Eur. Court H.R., Leander v. Sweden, 26 March 1987, § 48, Series A no 116; Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V; and Weber and Saravia v. Germany (dec.), no. 54934/00, § 79, ECHR 2006-XI). Accordingly, Articles 4 and 8 of Directive 2006/24 laying down rules relating to the access of the competent national authorities to the data also constitute an interference with the rights guaranteed by Article 7 of the Charter. 36      Likewise, Directive 2006/24 constitutes an interference with the fundamental right to the protection of personal data guaranteed by Article 8 of the Charter because it provides for the processing of personal data.
  • 65      It follows from the above that Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.66      Moreover, as far as concerns the rules relating to the security and protection of data retained by providers of publicly available electronic communications services or of public communications networks, it must be held that Directive 2006/24 does not provide for sufficient safeguards, as required by Article 8 of the Charter, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of that data. In the first place, Article 7 of Directive 2006/24 does not lay down rules which are specific and adapted to (i) the vast quantity of data whose retention is required by that directive, (ii) the sensitive nature of that data and (iii) the risk of unlawful access to that data, rules which would serve, in particular, to govern the protection and security of the data in question in a clear and strict manner in order to ensure their full integrity and confidentiality. Furthermore, a specific obligation on Member States to establish such rules has also not been laid down.
  • 60      Secondly, not only is there a general absence of limits in Directive 2006/24 but Directive 2006/24 also fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data and their subsequent use for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, may be considered to be sufficiently serious to justify such an interference. On the contrary, Directive 2006/24 simply refers, in Article 1(1), in a general manner to serious crime, as defined by each Member State in its national law.61      Furthermore, Directive 2006/24 does not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. Article 4 of the directive, which governs the access of those authorities to the data retained, does not expressly provide that that access and the subsequent use of the data in question must be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto; it merely provides that each Member State is to define the procedures to be followed and the conditions to be fulfilled in order to gain access to the retained data in accordance with necessity and proportionality requirements.
  • 55      The need for such safeguards is all the greater where, as laid down in Directive 2006/24, personal data are subjected to automatic processing and where there is a significant risk of unlawful access to those data (see, by analogy, as regards Article 8 of the ECHR, S. and Marper v. the United Kingdom, § 103, and M. K. v. France, 18 April 2013, no. 19522/09, § 35).56      As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population. 57      In this respect, it must be noted, first, that Directive 2006/24 covers, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.
  • 62      In particular, Directive 2006/24 does not lay down any objective criterion by which the number of persons authorised to access and subsequently use the data retained is limited to what is strictly necessary in the light of the objective pursued. Above all, the access by the competent national authorities to the data retained is not made dependent on a prior review carried out by a court or by an independent administrative body whose decision seeks to limit access to the data and their use to what is strictly necessary for the purpose of attaining the objective pursued and which intervenes following a reasoned request of those authorities submitted within the framework of procedures of prevention, detection or criminal prosecutions. Nor does it lay down a specific obligation on Member States designed to establish such limits. 63      Thirdly, so far as concerns the data retention period, Article 6 of Directive 2006/24 requires that those data be retained for a period of at least six months, without any distinction being made between the categories of data set out in Article 5 of that directive on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned.64      Furthermore, that period is set at between a minimum of 6 months and a maximum of 24 months, but it is not stated that the determination of the period of retention must be based on objective criteria in order to ensure that it is limited to what is strictly necessary.
  • 52      So far as concerns the right to respect for private life, the protection of that fundamental right requires, according to the Court’s settled case-law, in any event, that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary (Case C‑473/12 IPI EU:C:2013:715, paragraph 39 and the case-law cited).53      In that regard, it should be noted that the protection of personal data resulting from the explicit obligation laid down in Article 8(1) of the Charter is especially important for the right to respect for private life enshrined in Article 7 of the Charter.54      Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., Liberty and Others v. the United Kingdom, 1 July 2008, no. 58243/00, § 62 and 63; Rotaru v. Romania, § 57 to 59, and S. and Marper v. the United Kingdom, § 99).
  • 26      In that regard, it should be observed that the data which providers of publicly available electronic communications services or of public communications networks must retain, pursuant to Articles 3 and 5 of Directive 2006/24, include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services. Those data make it possible, in particular, to know the identity of the person with whom a subscriber or registered user has communicated and by what means, and to identify the time of the communication as well as the place from which that communication took place. They also make it possible to know the frequency of the communications of the subscriber or registered user with certain persons during a given period. 27      Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.
  • 32      By requiring the retention of the data listed in Article 5(1) of Directive 2006/24 and by allowing the competent national authorities to access those data, Directive 2006/24, as the Advocate General has pointed out, in particular, in paragraphs 39 and 40 of his Opinion, derogates from the system of protection of the right to privacy established by Directives 95/46 and 2002/58 with regard to the processing of personal data in the electronic communications sector, directives which provided for the confidentiality of communications and of traffic data as well as the obligation to erase or make those data anonymous where they are no longer needed for the purpose of the transmission of a communication, unless they are necessary for billing purposes and only for as long as so necessary.
  • On those grounds, the Court (Grand Chamber) hereby rules:Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is invalid.
  • Paul Merrell on 19 Jul 14
     
    EU Court of Justice decision in regard to a Directive that required communications data retention by telcos/ISPs, finding the Directive invalid as a violation of the right of privacy in communications. Fairly read, paragraph 59 outlaws bulk collection of such records, i.e., it requires the equivalent of a judge-issued search warrant in the U.S. based on probable cause to believe that the particular individual's communications are a legitimate object of a search.  Note also that paragraph 67 effectively forbids transfer of any retained data outside the E.U. So a barrier for NSA sharing of data with GCHQ derived from communications NSA collects from EU communications traffic. Bye-bye, Big Data for GCHQ in the E.U. 
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.
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  • 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."       
Paul Merrell

LINX Public Affairs » Advocate General says Data Retention Directive unlawful - 0 views

publicaffairs.linx.net/news

surveillance state EU GCHQ data-retention ISPs

shared by Paul Merrell on 12 Dec 13 - No Cached
  • The EU Data Retention Directive is incompatible with the Charter of Fundamental Rights of the European Union, according to the Advocate General of the European Court. While the purpose of the Directive, to ensure that communications data can be made available to law enforcement, is accepted as legitimate, the Advocate General says the legislator failed to provide adequate protections against misuse, as required by the Charter.
  • States supporting data retention are not out of the woods yet. The Advocate General’s opinion that the full extent of measures concerning retention of communications data, and access to the material so retained must be legislated at the European level is reached through his understanding of Article 52(1) of the Charter, that any limitation on the rights guaranteed by the Charter, such as right to privacy, must be “provided for by law”. This is the same Advocate General that proposed the same reasoning in another important case on Internet law, and in that case the European Court did not follow his advice. In the seminal case of Internet filtering, SABAM v Scarlet Extended, the Advocate General argued that it should be decided on the basis that court-ordered filtering by ISPs of copyright-infringing peer-to-peer traffic was “not provided for by law” until there is specific legislation to support it. The European Court chose not to follow the Advocate General’s narrow reasoning, and decided the case instead on the substantively more fundamental question of whether making ISPs filter traffic infringes human rights, ruling in favour of ISPs and users and against the copyright holders and States. It remains possible that in this case on data retention the Court will also choose to focus more specifically on the underlying questions raised by the Austrian Supreme Court.
  • Paul Merrell on 12 Dec 13
     
    Optimistic news on the ISP data-retention law front. If the data retention directive is found unlawful in the E.U., the ability of law enforcement and the spy agencies to access retained data is limited to what is retained voluntarily by ISPs. 
Paul Merrell

European ISPs Can Stop Logging User Data, Court Rules | TorrentFreak - 0 views

torrentfreak.com/ata-retention-directive-140408

surveillance state EU litigation data-retention

shared by Paul Merrell on 06 May 14 - No Cached
  • The European Court of Justice has overturned Europe's data retention directive, arguing that it's disproportionate and a violation of people's privacy. The decision has far-reaching consequences for the collection of data from European internet users, including their IP-addresses.
  • In a landmark ruling, the European Court of Justice has declared Europe’s Data Retention directive to be a violation of Internet users’ privacy. Under the Directive Internet providers and other telecom companies were required to log and store vast amounts of information, including who their subscribers communicate with, and what IP-addresses they use. The local authorities could then use this information to fight serious crimes, but it was also been frequently used by third parties, in online piracy cases for example. Today the Court ruled that the data collection requirements are disproportionate. In a case started by Digital Rights Ireland the Court effectively annulled the directive, and it’s now up to the individual member states to change local laws accordingly.
  • “The Court is of the opinion that, by adopting the Data Retention Directive, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality,” the Court states. “By requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data,” it adds. The judgement has far-reaching implications for large telecom companies, but also for smaller businesses including many VPN providers. With the new ruling these companies are no longer required to log extensive amount of user data as was required under the EU Directive.
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  • The European Court of Justice judgement is a clear victory for privacy activists, but mostly for the public who will regain some of their online privacy. While the ruling specified that some data retention may be needed, broad and mandatory retention laws and NSA-style data dragnets are no longer the standard.
Paul Merrell

Canadian Spies Collect Domestic Emails in Secret Security Sweep - The Intercept - 0 views

firstlook.org/...ony-express-email-surveillance

surveillance state Canada CSE bulk-collection email

shared by Paul Merrell on 27 Feb 15 - No Cached
  • Canada’s electronic surveillance agency is covertly monitoring vast amounts of Canadians’ emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada’s equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats.
  • Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation — exposing the controversial details the government withheld from the public. Under Canada’s criminal code, CSE is not allowed to eavesdrop on Canadians’ communications. But the agency can be granted special ministerial exemptions if its efforts are linked to protecting government infrastructure — a loophole that the Snowden documents show is being used to monitor the emails. The latest revelations will trigger concerns about how Canadians’ private correspondence with government employees are being archived by the spy agency and potentially shared with police or allied surveillance agencies overseas, such as the NSA. Members of the public routinely communicate with government employees when, for instance, filing tax returns, writing a letter to a member of parliament, applying for employment insurance benefits or submitting a passport application.
  • Chris Parsons, an internet security expert with the Toronto-based internet think tank Citizen Lab, told CBC News that “you should be able to communicate with your government without the fear that what you say … could come back to haunt you in unexpected ways.” Parsons said that there are legitimate cybersecurity purposes for the agency to keep tabs on communications with the government, but he added: “When we collect huge volumes, it’s not just used to track bad guys. It goes into data stores for years or months at a time and then it can be used at any point in the future.” In a top-secret CSE document on the security operation, dated from 2010, the agency says it “processes 400,000 emails per day” and admits that it is suffering from “information overload” because it is scooping up “too much data.” The document outlines how CSE built a system to handle a massive 400 terabytes of data from Internet networks each month — including Canadians’ emails — as part of the cyber operation. (A single terabyte of data can hold about a billion pages of text, or about 250,000 average-sized mp3 files.)
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  • The agency notes in the document that it is storing large amounts of “passively tapped network traffic” for “days to months,” encompassing the contents of emails, attachments and other online activity. It adds that it stores some kinds of metadata — data showing who has contacted whom and when, but not the content of the message — for “months to years.” The document says that CSE has “excellent access to full take data” as part of its cyber operations and is receiving policy support on “use of intercepted private communications.” The term “full take” is surveillance-agency jargon that refers to the bulk collection of both content and metadata from Internet traffic. Another top-secret document on the surveillance dated from 2010 suggests the agency may be obtaining at least some of the data by covertly mining it directly from Canadian Internet cables. CSE notes in the document that it is “processing emails off the wire.”
  • Paul Merrell on 27 Feb 15
     
    " CANADIAN SPIES COLLECT DOMESTIC EMAILS IN SECRET SECURITY SWEEP BY RYAN GALLAGHER AND GLENN GREENWALD @rj_gallagher@ggreenwald YESTERDAY AT 2:02 AM SHARE TWITTER FACEBOOK GOOGLE EMAIL PRINT POPULAR EXCLUSIVE: TSA ISSUES SECRET WARNING ON 'CATASTROPHIC' THREAT TO AVIATION CHICAGO'S "BLACK SITE" DETAINEES SPEAK OUT WHY DOES THE FBI HAVE TO MANUFACTURE ITS OWN PLOTS IF TERRORISM AND ISIS ARE SUCH GRAVE THREATS? NET NEUTRALITY IS HERE - THANKS TO AN UNPRECEDENTED GUERRILLA ACTIVISM CAMPAIGN HOW SPIES STOLE THE KEYS TO THE ENCRYPTION CASTLE Canada's electronic surveillance agency is covertly monitoring vast amounts of Canadians' emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada's equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats. Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation - exposing the controversial details the government withheld from the public. Under Canada's criminal code, CSE is no
Paul Merrell

EU high court strikes down metadata collection law | Ars Technica - 0 views

arstechnica.com/...s-down-metadata-collection-law

surveillance state E.U. law data-retention digital-privacy litigation

shared by Paul Merrell on 09 Apr 14 - No Cached
  • While the United States continues to debate metadata collection conducted in secret by the National Security Agency, the European Union has been openly collecting the same sort of data for eight years. In the wake of terrorist attacks in Madrid (2004) and London (2005), the European Union passed a directive in 2006 requiring that all telecommunications providers retain all kinds of telephone and Internet metadata for at least six months and provide it to law enforcement upon request. According to a ruling handed down Tuesday by the European Court of Justice, that directive is now invalid. The case was brought by activists at Digital Rights Ireland and the Austrian Working Group on Data Retention. The two organizations had challenged the law as it had been imposed in their respective countries.
  • While the United States continues to debate metadata collection conducted in secret by the National Security Agency, the European Union has been openly collecting the same sort of data for eight years. In the wake of terrorist attacks in Madrid (2004) and London (2005), the European Union passed a directive in 2006 requiring that all telecommunications providers retain all kinds of telephone and Internet metadata for at least six months and provide it to law enforcement upon request. According to a ruling handed down Tuesday by the European Court of Justice, that directive is now invalid. The case was brought by activists at Digital Rights Ireland and the Austrian Working Group on Data Retention. The two organizations had challenged the law as it had been imposed in their respective countries.
  • The European judges concluded: The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance. . . . Although the retention of data required by the directive may be considered to be appropriate for attaining the objective pursued by it, the wide-ranging and particularly serious interference of the directive with the fundamental rights at issue is not sufficiently circumscribed to ensure that that interference is actually limited to what is strictly necessary.
Paul Merrell

From Radio to Porn, British Spies Track Web Users' Online Identities - 0 views

theintercept.com/...ck-web-users-online-identities

surveillance state GCHQ Black-Hole

shared by Paul Merrell on 27 Sep 15 - No Cached
  • HERE WAS A SIMPLE AIM at the heart of the top-secret program: Record the website browsing habits of “every visible user on the Internet.” Before long, billions of digital records about ordinary people’s online activities were being stored every day. Among them were details cataloging visits to porn, social media and news websites, search engines, chat forums, and blogs. The mass surveillance operation — code-named KARMA POLICE — was launched by British spies about seven years ago without any public debate or scrutiny. It was just one part of a giant global Internet spying apparatus built by the United Kingdom’s electronic eavesdropping agency, Government Communications Headquarters, or GCHQ. The revelations about the scope of the British agency’s surveillance are contained in documents obtained by The Intercept from National Security Agency whistleblower Edward Snowden. Previous reports based on the leaked files have exposed how GCHQ taps into Internet cables to monitor communications on a vast scale, but many details about what happens to the data after it has been vacuumed up have remained unclear.
  • Amid a renewed push from the U.K. government for more surveillance powers, more than two dozen documents being disclosed today by The Intercept reveal for the first time several major strands of GCHQ’s existing electronic eavesdropping capabilities.
  • The surveillance is underpinned by an opaque legal regime that has authorized GCHQ to sift through huge archives of metadata about the private phone calls, emails and Internet browsing logs of Brits, Americans, and any other citizens — all without a court order or judicial warrant
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  • A huge volume of the Internet data GCHQ collects flows directly into a massive repository named Black Hole, which is at the core of the agency’s online spying operations, storing raw logs of intercepted material before it has been subject to analysis. Black Hole contains data collected by GCHQ as part of bulk “unselected” surveillance, meaning it is not focused on particular “selected” targets and instead includes troves of data indiscriminately swept up about ordinary people’s online activities. Between August 2007 and March 2009, GCHQ documents say that Black Hole was used to store more than 1.1 trillion “events” — a term the agency uses to refer to metadata records — with about 10 billion new entries added every day. As of March 2009, the largest slice of data Black Hole held — 41 percent — was about people’s Internet browsing histories. The rest included a combination of email and instant messenger records, details about search engine queries, information about social media activity, logs related to hacking operations, and data on people’s use of tools to browse the Internet anonymously.
  • Throughout this period, as smartphone sales started to boom, the frequency of people’s Internet use was steadily increasing. In tandem, British spies were working frantically to bolster their spying capabilities, with plans afoot to expand the size of Black Hole and other repositories to handle an avalanche of new data. By 2010, according to the documents, GCHQ was logging 30 billion metadata records per day. By 2012, collection had increased to 50 billion per day, and work was underway to double capacity to 100 billion. The agency was developing “unprecedented” techniques to perform what it called “population-scale” data mining, monitoring all communications across entire countries in an effort to detect patterns or behaviors deemed suspicious. It was creating what it said would be, by 2013, “the world’s biggest” surveillance engine “to run cyber operations and to access better, more valued data for customers to make a real world difference.”
  • A document from the GCHQ target analysis center (GTAC) shows the Black Hole repository’s structure.
  • The data is searched by GCHQ analysts in a hunt for behavior online that could be connected to terrorism or other criminal activity. But it has also served a broader and more controversial purpose — helping the agency hack into European companies’ computer networks. In the lead up to its secret mission targeting Netherlands-based Gemalto, the largest SIM card manufacturer in the world, GCHQ used MUTANT BROTH in an effort to identify the company’s employees so it could hack into their computers. The system helped the agency analyze intercepted Facebook cookies it believed were associated with Gemalto staff located at offices in France and Poland. GCHQ later successfully infiltrated Gemalto’s internal networks, stealing encryption keys produced by the company that protect the privacy of cell phone communications.
  • Similarly, MUTANT BROTH proved integral to GCHQ’s hack of Belgian telecommunications provider Belgacom. The agency entered IP addresses associated with Belgacom into MUTANT BROTH to uncover information about the company’s employees. Cookies associated with the IPs revealed the Google, Yahoo, and LinkedIn accounts of three Belgacom engineers, whose computers were then targeted by the agency and infected with malware. The hacking operation resulted in GCHQ gaining deep access into the most sensitive parts of Belgacom’s internal systems, granting British spies the ability to intercept communications passing through the company’s networks.
  • In March, a U.K. parliamentary committee published the findings of an 18-month review of GCHQ’s operations and called for an overhaul of the laws that regulate the spying. The committee raised concerns about the agency gathering what it described as “bulk personal datasets” being held about “a wide range of people.” However, it censored the section of the report describing what these “datasets” contained, despite acknowledging that they “may be highly intrusive.” The Snowden documents shine light on some of the core GCHQ bulk data-gathering programs that the committee was likely referring to — pulling back the veil of secrecy that has shielded some of the agency’s most controversial surveillance operations from public scrutiny. KARMA POLICE and MUTANT BROTH are among the key bulk collection systems. But they do not operate in isolation — and the scope of GCHQ’s spying extends far beyond them.
  • The agency operates a bewildering array of other eavesdropping systems, each serving its own specific purpose and designated a unique code name, such as: SOCIAL ANTHROPOID, which is used to analyze metadata on emails, instant messenger chats, social media connections and conversations, plus “telephony” metadata about phone calls, cell phone locations, text and multimedia messages; MEMORY HOLE, which logs queries entered into search engines and associates each search with an IP address; MARBLED GECKO, which sifts through details about searches people have entered into Google Maps and Google Earth; and INFINITE MONKEYS, which analyzes data about the usage of online bulletin boards and forums. GCHQ has other programs that it uses to analyze the content of intercepted communications, such as the full written body of emails and the audio of phone calls. One of the most important content collection capabilities is TEMPORA, which mines vast amounts of emails, instant messages, voice calls and other communications and makes them accessible through a Google-style search tool named XKEYSCORE.
  • As of September 2012, TEMPORA was collecting “more than 40 billion pieces of content a day” and it was being used to spy on people across Europe, the Middle East, and North Africa, according to a top-secret memo outlining the scope of the program. The existence of TEMPORA was first revealed by The Guardian in June 2013. To analyze all of the communications it intercepts and to build a profile of the individuals it is monitoring, GCHQ uses a variety of different tools that can pull together all of the relevant information and make it accessible through a single interface. SAMUEL PEPYS is one such tool, built by the British spies to analyze both the content and metadata of emails, browsing sessions, and instant messages as they are being intercepted in real time. One screenshot of SAMUEL PEPYS in action shows the agency using it to monitor an individual in Sweden who visited a page about GCHQ on the U.S.-based anti-secrecy website Cryptome.
  • Partly due to the U.K.’s geographic location — situated between the United States and the western edge of continental Europe — a large amount of the world’s Internet traffic passes through its territory across international data cables. In 2010, GCHQ noted that what amounted to “25 percent of all Internet traffic” was transiting the U.K. through some 1,600 different cables. The agency said that it could “survey the majority of the 1,600” and “select the most valuable to switch into our processing systems.”
  • According to Joss Wright, a research fellow at the University of Oxford’s Internet Institute, tapping into the cables allows GCHQ to monitor a large portion of foreign communications. But the cables also transport masses of wholly domestic British emails and online chats, because when anyone in the U.K. sends an email or visits a website, their computer will routinely send and receive data from servers that are located overseas. “I could send a message from my computer here [in England] to my wife’s computer in the next room and on its way it could go through the U.S., France, and other countries,” Wright says. “That’s just the way the Internet is designed.” In other words, Wright adds, that means “a lot” of British data and communications transit across international cables daily, and are liable to be swept into GCHQ’s databases.
  • A map from a classified GCHQ presentation about intercepting communications from undersea cables. GCHQ is authorized to conduct dragnet surveillance of the international data cables through so-called external warrants that are signed off by a government minister. The external warrants permit the agency to monitor communications in foreign countries as well as British citizens’ international calls and emails — for example, a call from Islamabad to London. They prohibit GCHQ from reading or listening to the content of “internal” U.K. to U.K. emails and phone calls, which are supposed to be filtered out from GCHQ’s systems if they are inadvertently intercepted unless additional authorization is granted to scrutinize them. However, the same rules do not apply to metadata. A little-known loophole in the law allows GCHQ to use external warrants to collect and analyze bulk metadata about the emails, phone calls, and Internet browsing activities of British people, citizens of closely allied countries, and others, regardless of whether the data is derived from domestic U.K. to U.K. communications and browsing sessions or otherwise. In March, the existence of this loophole was quietly acknowledged by the U.K. parliamentary committee’s surveillance review, which stated in a section of its report that “special protection and additional safeguards” did not apply to metadata swept up using external warrants and that domestic British metadata could therefore be lawfully “returned as a result of searches” conducted by GCHQ.
  • Perhaps unsurprisingly, GCHQ appears to have readily exploited this obscure legal technicality. Secret policy guidance papers issued to the agency’s analysts instruct them that they can sift through huge troves of indiscriminately collected metadata records to spy on anyone regardless of their nationality. The guidance makes clear that there is no exemption or extra privacy protection for British people or citizens from countries that are members of the Five Eyes, a surveillance alliance that the U.K. is part of alongside the U.S., Canada, Australia, and New Zealand. “If you are searching a purely Events only database such as MUTANT BROTH, the issue of location does not occur,” states one internal GCHQ policy document, which is marked with a “last modified” date of July 2012. The document adds that analysts are free to search the databases for British metadata “without further authorization” by inputing a U.K. “selector,” meaning a unique identifier such as a person’s email or IP address, username, or phone number. Authorization is “not needed for individuals in the U.K.,” another GCHQ document explains, because metadata has been judged “less intrusive than communications content.” All the spies are required to do to mine the metadata troves is write a short “justification” or “reason” for each search they conduct and then click a button on their computer screen.
  • Intelligence GCHQ collects on British persons of interest is shared with domestic security agency MI5, which usually takes the lead on spying operations within the U.K. MI5 conducts its own extensive domestic surveillance as part of a program called DIGINT (digital intelligence).
  • GCHQ’s documents suggest that it typically retains metadata for periods of between 30 days to six months. It stores the content of communications for a shorter period of time, varying between three to 30 days. The retention periods can be extended if deemed necessary for “cyber defense.” One secret policy paper dated from January 2010 lists the wide range of information the agency classes as metadata — including location data that could be used to track your movements, your email, instant messenger, and social networking “buddy lists,” logs showing who you have communicated with by phone or email, the passwords you use to access “communications services” (such as an email account), and information about websites you have viewed.
  • Records showing the full website addresses you have visited — for instance, www.gchq.gov.uk/what_we_do — are treated as content. But the first part of an address you have visited — for instance, www.gchq.gov.uk — is treated as metadata. In isolation, a single metadata record of a phone call, email, or website visit may not reveal much about a person’s private life, according to Ethan Zuckerman, director of Massachusetts Institute of Technology’s Center for Civic Media. But if accumulated and analyzed over a period of weeks or months, these details would be “extremely personal,” he told The Intercept, because they could reveal a person’s movements, habits, religious beliefs, political views, relationships, and even sexual preferences. For Zuckerman, who has studied the social and political ramifications of surveillance, the most concerning aspect of large-scale government data collection is that it can be “corrosive towards democracy” — leading to a chilling effect on freedom of expression and communication. “Once we know there’s a reasonable chance that we are being watched in one fashion or another it’s hard for that not to have a ‘panopticon effect,’” he said, “where we think and behave differently based on the assumption that people may be watching and paying attention to what we are doing.”
  • When compared to surveillance rules in place in the U.S., GCHQ notes in one document that the U.K. has “a light oversight regime.” The more lax British spying regulations are reflected in secret internal rules that highlight greater restrictions on how NSA databases can be accessed. The NSA’s troves can be searched for data on British citizens, one document states, but they cannot be mined for information about Americans or other citizens from countries in the Five Eyes alliance. No such constraints are placed on GCHQ’s own databases, which can be sifted for records on the phone calls, emails, and Internet usage of Brits, Americans, and citizens from any other country. The scope of GCHQ’s surveillance powers explain in part why Snowden told The Guardian in June 2013 that U.K. surveillance is “worse than the U.S.” In an interview with Der Spiegel in July 2013, Snowden added that British Internet cables were “radioactive” and joked: “Even the Queen’s selfies to the pool boy get logged.”
  • In recent years, the biggest barrier to GCHQ’s mass collection of data does not appear to have come in the form of legal or policy restrictions. Rather, it is the increased use of encryption technology that protects the privacy of communications that has posed the biggest potential hindrance to the agency’s activities. “The spread of encryption … threatens our ability to do effective target discovery/development,” says a top-secret report co-authored by an official from the British agency and an NSA employee in 2011. “Pertinent metadata events will be locked within the encrypted channels and difficult, if not impossible, to prise out,” the report says, adding that the agencies were working on a plan that would “(hopefully) allow our Internet Exploitation strategy to prevail.”
Paul Merrell

David Davis' devastating attack on our loss of privacy | Mail Online - 0 views

www.dailymail.co.uk/...ing-terrorists-lust-power.html

surveillance state NSA GCHQ legislation UK

shared by Paul Merrell on 19 Jul 14 - No Cached
  • The last time the main parties got together in a closed room, did a deal and told the country there was a need to act urgently, we were on the edge of abandoning 300 years of press freedom.This time our privacy is under threat. In the name of security, the Government is fast-tracking legislation through Parliament that will allow it to collect huge quantities of our personal data. We would do well to remember the advice of Ben Franklin: ‘Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.’
  • The Government has engineered a ‘theatrical emergency’ – in this case terrorism and hidden paedophile rings – to ram the Data Retention and Investigatory Powers Bill through Parliament without proper debate. It is an insult to the supremacy of Parliament, to democracy and to the trust of the public.It was April 8 when the European Court of Justice struck down the Data Retention Directive for being incompatible with human rights. The Home Office has had time to put an alternative in place, so the excuses for why the legislation is being  fast-tracked are laughable.
  • It is a sad state of affairs when European courts are a greater defender of our ancient rights than Parliament and Her Majesty’s Government. Even the German Supreme Court overturned its far less invasive data collection laws for violating the privacy rights of German citizens. How far we have slipped, this birthplace of democracy, that our own judicial safeguards stand by while our hard-fought rights are stripped from us by a Government that has lost its sense of proportion in its fear of making a mistake.
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  • Even the statistics already released are cause for concern.  The 2013 report of the Interception of Communications Commissioner revealed that 514,608 requests were made for data. By comparison, the most requests issued by the FBI in a year is 56,507. How can it be our intelligence agencies made nine times the number of requests for communications data than their US counterparts?
  • After the ‘dodgy dossier’ on weapons of mass destruction, the deceit on rendition and torture, and the debacle over the snooper’s charter, it is hard to be confident.Our Government has claimed that intercepted communications data was the critical evidence in 95 per cent of all serious crime cases. This would seem to go against the experience of the Metropolitan Police, which in evidence to a joint committee stated that ‘communications data is used sparingly, because it is costly and resource intensive, and because of the need to… consider the impact of collateral intrusion on innocent people’.
  • What this Government is chasing is not public security, it is protection from blame if anything goes wrong. Those are not the same thing.One person’s loss of freedom is everybody’s loss of freedom, one person’s loss of privacy is everybody’s loss of privacy. We must stand up for our rights and not succumb to the politics of fear. Otherwise we give those who hate our civilisation an easy victory, without a shot being fired.
  • Paul Merrell on 19 Jul 14
     
    A UK M.P. critiques the full court press in the House of Commons for new legislation attempting to work around the EU Court of Justice ruling on electronic communication data retention laws.  Very nice essay.
Paul Merrell

NSA loophole allows warrantless search for US citizens' emails and phone calls | World ... - 0 views

www.theguardian.com/...rrantless-searches-email-calls

surveillance state NSA Wyden FISA-loophole must-read

shared by Paul Merrell on 17 Aug 13 - No Cached
  • The National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens' email and phone calls without a warrant, according to a top-secret document passed to the Guardian by Edward Snowden.The previously undisclosed rule change allows NSA operatives to hunt for individual Americans' communications using their name or other identifying information. Senator Ron Wyden told the Guardian that the law provides the NSA with a loophole potentially allowing "warrantless searches for the phone calls or emails of law-abiding Americans".The authority, approved in 2011, appears to contrast with repeated assurances from Barack Obama and senior intelligence officials to both Congress and the American public that the privacy of US citizens is protected from the NSA's dragnet surveillance programs.
  • The intelligence data is being gathered under Section 702 of the of the Fisa Amendments Act (FAA), which gives the NSA authority to target without warrant the communications of foreign targets, who must be non-US citizens and outside the US at the point of collection.The communications of Americans in direct contact with foreign targets can also be collected without a warrant, and the intelligence agencies acknowledge that purely domestic communications can also be inadvertently swept into its databases. That process is known as "incidental collection" in surveillance parlance.But this is the first evidence that the NSA has permission to search those databases for specific US individuals' communications.
  • A secret glossary document provided to operatives in the NSA's Special Source Operations division – which runs the Prism program and large-scale cable intercepts through corporate partnerships with technology companies – details an update to the "minimization" procedures that govern how the agency must handle the communications of US persons. That group is defined as both American citizens and foreigners located in the US."While the FAA 702 minimization procedures approved on 3 October 2011 now allow for use of certain United States person names and identifiers as query terms when reviewing collected FAA 702 data," the glossary states, "analysts may NOT/NOT [not repeat not] implement any USP [US persons] queries until an effective oversight process has been developed by NSA and agreed to by DOJ/ODNI [Office of the Director of National Intelligence]."The term "identifiers" is NSA jargon for information relating to an individual, such as telephone number, email address, IP address and username as well as their name.The document – which is undated, though metadata suggests this version was last updated in June 2012 – does not say whether the oversight process it mentions has been established or whether any searches against US person names have taken place.
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  • Wyden, an Oregon Democrat on the Senate intelligence committee, has obliquely warned for months that the NSA's retention of Americans' communications incidentally collected and its ability to search through it has been far more extensive than intelligence officials have stated publicly. Speaking this week, Wyden told the Guardian it amounts to a "backdoor search" through Americans' communications data."Section 702 was intended to give the government new authorities to collect the communications of individuals believed to be foreigners outside the US, but the intelligence community has been unable to tell Congress how many Americans have had their communications swept up in that collection," he said."Once Americans' communications are collected, a gap in the law that I call the 'back-door searches loophole' allows the government to potentially go through these communications and conduct warrantless searches for the phone calls or emails of law-abiding Americans."
  • Exclusive: Spy agency has secret backdoor permission to search databases for individual Americans' communications
Paul Merrell

Europe Is Spying on You - The New York Times - 0 views

www.nytimes.com/...-on-you-mass-surveillance.html

surveillance state legislation litigation France Germany Austria Netherlands Findland ECJ

shared by Paul Merrell on 28 Oct 15 - No Cached
  • When Edward Snowden disclosed details of America’s huge surveillance program two years ago, many in Europe thought that the response would be increased transparency and stronger oversight of security services. European countries, however, are moving in the opposite direction. Instead of more public scrutiny, we are getting more snooping. Pushed to respond to the atrocious attacks in Paris and Copenhagen and by the threats posed by the Islamic State to Europe’s internal security, several countries are amending their counterterrorism legislation to grant more intrusive powers to security services, especially in terms of mass electronic surveillance.
  • Governments now argue that to guarantee our security we have to sacrifice some rights. This is a specious argument. By shifting from targeted to mass surveillance, governments risk undermining democracy while pretending to protect it.They are also betraying a long political and judicial tradition affording broad protection to privacy in Europe, where democratic legal systems have evolved to protect individuals from arbitrary interference by the state in their private and family life. The European Court of Human Rights has long upheld the principle that surveillance interferes with the right to privacy. Although the court accepts that the use of confidential information is essential in combating terrorist threats, it has held that the collection, use and storage of such information should be authorized only under exceptional and precise conditions, and must be accompanied by adequate legal safeguards and independent supervision. The court has consistently applied this principle for decades when it was called to judge the conduct of several European countries, which were combating domestic terrorist groups.
  • More recently, as new technologies have offered more avenues to increase surveillance and data collection, the court has reiterated its position in a number of leading cases against several countries, including France, Romania, Russia and Britain, condemned for having infringed the right to private and family life that in the interpretation of the court covers also “the physical and psychological integrity of a person.”
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  • Last year, the European Court of Justice set limits on telecommunication data retention. By invalidating a European Union directive for its unnecessary “wide-ranging and particularly serious interference with the fundamental right to respect for private life” and personal data, this court reaffirmed the outstanding place privacy holds in Europe. This judgment echoed a 2006 German Constitutional Court ruling that the German police had breached the individual right to self-determination and human dignity after they conducted a computerized search of suspected terrorists. Regrettably, these judgments are often ignored by key decision-makers. Many of the surveillance policies that have recently been adopted in Europe fail to abide by these legal standards. Worse, many of the new intrusive measures would be applied without any prior judicial review establishing their legality, proportionality or necessity. This gives excessive power to governments and creates a clear risk of arbitrary application and abuse.
Paul Merrell

High Court Rules UK's Surveillance Powers Violate Human Rights - 0 views

www.tomshardware.com/...ourt-dripa-unlawful,29615.html

surveillance state GCHQ UK litigation

shared by Paul Merrell on 20 Jul 15 - No Cached
  • UK's High Court found the rushed Data Retention and Investigatory Powers Act (DRIPA) to be illegal under the European Convention on Human Rights and EU Charter of Fundamental Rights, both of which require respect for private and family life, as well as protection of personal data in the case of the latter. DRIPA was challenged by two members of Parliament (MPs), Labor's Tom Watson and the Conservative David Davis, who argued that the surveillance of communications wasn't limited to serious crimes, that individual notices for data collection were kept secret, and that no provision existed to protect those who need professional confidentiality, such as lawyers and journalists. DRIPA was pushed through in three days last year after the European Court of Justice ruled that the EU data retention powers were disproportionate, which invalidated the previous data retention law in the UK. The UK High Court also ruled that sections 1 and 2 of DRIPA were unlawful based on the fact that they fail to provide precise policies to ensure that data is only accessed for the purpose of investigating serious crimes. Another major point against DRIPA was that it didn't require judicial approval, which could limit access to only the data that is strictly necessary for investigations.
  • DRIPA passed in only three days, but the Court allowed it to continue for another nine months, to give the UK government enough time to draft new legislation. Although this almost doubles the time in which this law will exist, it might be better in the long term, as it gives the members of Parliament enough time to debate its successor, without having to rush yet another law fearing that the government's surveillance powers will expire. This court ruling arrived at the right time, as the UK government is currently preparing the draft for the Investigative Powers Bill (also called Snooper's Charter by many), which further expands the government's surveillance powers and may even request encryption backdoors. It also joins other recent reviews of the government's surveillance laws that called for much stricter oversight done by judges rather than the government's own members. "Campaigners, MPs across the political spectrum, the Government's own reviewer of terrorism legislation are all calling for judicial oversight and clearer safeguards," said James Welch, Legal Director for Liberty, a human rights organization.
  • Paul Merrell on 20 Jul 15
     
    The Dark State takes another hit.
Paul Merrell

Data Pirates of the Caribbean: The NSA Is Recording Every Cell Phone Call in the Bahama... - 0 views

firstlook.org/...-every-cell-phone-call-bahamas

surveillance state NSA DEA cell-phone-dragnet-recording

shared by Paul Merrell on 20 May 14 - No Cached
  • The National Security Agency is secretly intercepting, recording, and archiving the audio of virtually every cell phone conversation on the island nation of the Bahamas. According to documents provided by NSA whistleblower Edward Snowden, the surveillance is part of a top-secret system – code-named SOMALGET – that was implemented without the knowledge or consent of the Bahamian government. Instead, the agency appears to have used access legally obtained in cooperation with the U.S. Drug Enforcement Administration to open a backdoor to the country’s cellular telephone network, enabling it to covertly record and store the “full-take audio” of every mobile call made to, from and within the Bahamas – and to replay those calls for up to a month. SOMALGET is part of a broader NSA program called MYSTIC, which The Intercept has learned is being used to secretly monitor the telecommunications systems of the Bahamas and several other countries, including Mexico, the Philippines, and Kenya. But while MYSTIC scrapes mobile networks for so-called “metadata” – information that reveals the time, source, and destination of calls – SOMALGET is a cutting-edge tool that enables the NSA to vacuum up and store the actual content of every conversation in an entire country.
  • All told, the NSA is using MYSTIC to gather personal data on mobile calls placed in countries with a combined population of more than 250 million people. And according to classified documents, the agency is seeking funding to export the sweeping surveillance capability elsewhere. The program raises profound questions about the nature and extent of American surveillance abroad. The U.S. intelligence community routinely justifies its massive spying efforts by citing the threats to national security posed by global terrorism and unpredictable rival nations like Russia and Iran. But the NSA documents indicate that SOMALGET has been deployed in the Bahamas to locate “international narcotics traffickers and special-interest alien smugglers” – traditional law-enforcement concerns, but a far cry from derailing terror plots or intercepting weapons of mass destruction.
  • By targeting the Bahamas’ entire mobile network, the NSA is intentionally collecting and retaining intelligence on millions of people who have not been accused of any crime or terrorist activity. Nearly five million Americans visit the country each year, and many prominent U.S. citizens keep homes there, including Sen. Tom Harkin (D-Iowa), Bill Gates, and Oprah Winfrey.
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  • The Intercept has confirmed that as of 2013, the NSA was actively using MYSTIC to gather cell-phone metadata in five countries, and was intercepting voice data in two of them. Documents show that the NSA has been generating intelligence reports from MYSTIC surveillance in the Bahamas, Mexico, Kenya, the Philippines, and one other country, which The Intercept is not naming in response to specific, credible concerns that doing so could lead to increased violence. The more expansive full-take recording capability has been deployed in both the Bahamas and the unnamed country. MYSTIC was established in 2009 by the NSA’s Special Source Operations division, which works with corporate partners to conduct surveillance. Documents in the Snowden archive describe it as a “program for embedded collection systems overtly installed on target networks, predominantly for the collection and processing of wireless/mobile communications networks.”
  • If an entire nation’s cell-phone calls were a menu of TV shows, MYSTIC would be a cable programming guide showing which channels offer which shows, and when. SOMALGET would be the DVR that automatically records every show on every channel and stores them for a month. MYSTIC provides the access; SOMALGET provides the massive amounts of storage needed to archive all those calls so that analysts can listen to them at will after the fact. According to one NSA document, SOMALGET is “deployed against entire networks” in the Bahamas and the second country, and processes “over 100 million call events per day.”
  • When U.S. drug agents need to tap a phone of a suspected drug kingpin in another country, they call up their counterparts and ask them set up an intercept. To facilitate those taps, many nations – including the Bahamas – have hired contractors who install and maintain so-called lawful intercept equipment on their telecommunications. With SOMALGET, it appears that the NSA has used the access those contractors developed to secretly mine the country’s entire phone system for “signals intelligence” –recording every mobile call in the country. “Host countries,” the document notes, “are not aware of NSA’s SIGINT collection.” “Lawful intercept systems engineer communications vulnerabilities into networks, forcing the carriers to weaken,” says Christopher Soghoian, the principal technologist for the American Civil Liberties Union. “Host governments really should be thinking twice before they accept one of these Trojan horses.”
  • The DEA has long been in a unique position to help the NSA gain backdoor access to foreign phone networks. “DEA has close relationships with foreign government counterparts and vetted foreign partners,” the manager of the NSA’s drug-war efforts reported in a 2004 memo. Indeed, with more than 80 international offices, the DEA is one of the most widely deployed U.S. agencies around the globe. But what many foreign governments fail to realize is that U.S. drug agents don’t confine themselves to simply fighting narcotics traffickers. “DEA is actually one of the biggest spy operations there is,” says Finn Selander, a former DEA special agent who works with the drug-reform advocacy group Law Enforcement Against Prohibition. “Our mandate is not just drugs. We collect intelligence.” What’s more, Selander adds, the NSA has aided the DEA for years on surveillance operations. “On our reports, there’s drug information and then there’s non-drug information,” he says. “So countries let us in because they don’t view us, really, as a spy organization.”
  • “I seriously don’t think that would be your run-of-the-mill legal interception equipment,” says the former engineer, who worked with hardware and software that typically maxed out at 1,000 intercepts. The NSA, by contrast, is recording and storing tens of millions of calls – “mass surveillance,” he observes, that goes far beyond the standard practices for lawful interception recognized around the world. The Bahamas Telecommunications Company did not respond to repeated phone calls and emails.
  • The proliferation of private contractors has apparently provided the NSA with direct access to foreign phone networks. According to the documents, MYSTIC draws its data from “collection systems” that were overtly installed on the telecommunications systems of targeted countries, apparently by corporate “partners” cooperating with the NSA. One NSA document spells out that “the overt purpose” given for accessing foreign telecommunications systems is “for legitimate commercial service for the Telco’s themselves.” But the same document adds: “Our covert mission is the provision of SIGINT,” or signals intelligence.
  • According to the NSA documents, MYSTIC targets calls and other data transmitted on  Global System for Mobile Communications networks – the primary framework used for cell phone calls worldwide. In the Philippines, MYSTIC collects “GSM, Short Message Service (SMS) and Call Detail Records” via access provided by a “DSD asset in a Philippine provider site.” (The DSD refers to the Defence Signals Directorate, an arm of Australian intelligence. The Australian consulate in New York declined to comment.) The operation in Kenya is “sponsored” by the CIA, according to the documents, and collects “GSM metadata with the potential for content at a later date.” The Mexican operation is likewise sponsored by the CIA. The documents don’t say how or under what pretenses the agency is gathering call data in those countries. In the Bahamas, the documents say, the NSA intercepts GSM data that is transmitted over what is known as the “A link”–or “A interface”–a core component of many mobile networks. The A link transfers data between two crucial parts of GSM networks – the base station subsystem, where phones in the field communicate with cell towers, and the network subsystem, which routes calls and text messages to the appropriate destination. “It’s where all of the telephone traffic goes,” says the former engineer.
  • When U.S. drug agents wiretap a country’s phone networks, they must comply with the host country’s laws and work alongside their law enforcement counterparts. “The way DEA works with our allies – it could be Bahamas or Jamaica or anywhere – the host country has to invite us,” says Margolis. “We come in and provide the support, but they do the intercept themselves.” The Bahamas’ Listening Devices Act requires all wiretaps to be authorized in writing either by the minister of national security or the police commissioner in consultation with the attorney general. The individuals to be targeted must be named. Under the nation’s Data Protection Act, personal data may only be “collected by means which are both lawful and fair in the circumstances of the case.” The office of the Bahamian data protection commissioner, which administers the act, said in a statement that it “was not aware of the matter you raise.” Countries like the Bahamas don’t install lawful intercepts on their own. With the adoption of international standards, a thriving market has emerged for private firms that are contracted by foreign governments to install and maintain lawful intercept equipment. Currently valued at more than $128 million, the global market for private interception services is expected to skyrocket to more than $970 million within the next four years, according to a 2013 report from the research firm Markets and Markets.
  • If the U.S. government wanted to make a case for surveillance in the Bahamas, it could point to the country’s status as a leading haven for tax cheats, corporate shell games, and a wide array of black-market traffickers. The State Department considers the Bahamas both a “major drug-transit country” and a “major money laundering country” (a designation it shares with more than 60 other nations, including the U.S.). According to the International Monetary Fund, as of 2011 the Bahamas was home to 271 banks and trust companies with active licenses. At the time, the Bahamian banks held $595 billion in U.S. assets. But the NSA documents don’t reflect a concerted focus on the money launderers and powerful financial institutions – including numerous Western banks – that underpin the black market for narcotics in the Bahamas. Instead, an internal NSA presentation from 2013 recounts with pride how analysts used SOMALGET to locate an individual who “arranged Mexico-to-United States marijuana shipments” through the U.S. Postal Service.
  • The presentation doesn’t say whether the NSA shared the information with the DEA. But the drug agency’s Special Operations Divison has come under fire for improperly using classified information obtained by the NSA to launch criminal investigations – and then creating false narratives to mislead courts about how the investigations began. The tactic – known as parallel construction – was first reported by Reuters last year, and is now under investigation by the Justice Department’s inspector general. So: Beyond a desire to bust island pot dealers, why would the NSA choose to apply a powerful collection tool such as SOMALGET against the Bahamas, which poses virtually no threat to the United States? The answer may lie in a document that characterizes the Bahamas operation as a “test bed for system deployments, capabilities, and improvements” to SOMALGET. The country’s small population – fewer than 400,000 residents – provides a manageable sample to try out the surveillance system’s features. Since SOMALGET is also operational in one other country, the Bahamas may be used as a sort of guinea pig to beta-test improvements and alterations without impacting the system’s operations elsewhere. “From an engineering point of view it makes perfect sense,” says the former engineer. “Absolutely.”
  • SOMALGET operates under Executive Order 12333, a Reagan-era rule establishing wide latitude for the NSA and other intelligence agencies to spy on other countries, as long as the attorney general is convinced the efforts are aimed at gathering foreign intelligence. In 2000, the NSA assured Congress that all electronic surveillance performed under 12333 “must be conducted in a manner that minimizes the acquisition, retention, and dissemination of information about unconsenting U.S. persons.” In reality, many legal experts point out, the lack of judicial oversight or criminal penalties for violating the order render the guidelines meaningless. “I think it would be open, whether it was legal or not,” says German, the former FBI agent. “Because we don’t have all the facts about how they’re doing it. For a long time, the NSA has been interpreting their authority in the broadest possible way, even beyond what an objective observer would say was reasonable.” “An American citizen has Fourth Amendment rights wherever they are,” adds Kurt Opsahl, an attorney with the Electronic Frontier Foundation. “Nevertheless, there have certainly been a number of things published over the last year which suggest that there are broad, sweeping programs that the NSA and other government agencies are doing abroad that sweep up the communications of Americans.”
  • Legal or not, the NSA’s covert surveillance of an entire nation suggests that it will take more than the president’s tepid “limits” to rein in the ambitions of the intelligence community. “It’s almost like they have this mentality – if we can, we will,” says German. “There’s no analysis of the long-term risks of doing it, no analysis of whether it’s actually worth the effort, no analysis of whether we couldn’t take those resources and actually put them on real threats and do more good.” It’s not surprising, German adds, that the government’s covert program in the Bahamas didn’t remain covert. “The undermining of international law and international cooperation is such a long-term negative result of these programs that they had to know would eventually be exposed, whether through a leak, whether through a spy, whether through an accident,” he says. “Nothing stays secret forever. It really shows the arrogance of these agencies – they were just going to do what they were going to do, and they weren’t really going to consider any other important aspects of how our long-term security needs to be addressed.”
  • Paul Merrell on 20 May 14
     
    Words fail me.
Paul Merrell

Obama to propose legislation to protect firms that share cyberthreat data - The Washing... - 0 views

www.washingtonpost.com/...4-bcfb-059ec7a93ddc_story.html

surveillance state U.S. digital-privacy legislation

shared by Paul Merrell on 19 Jan 15 - No Cached
  • President Obama plans to announce legislation Tuesday that would shield companies from lawsuits for sharing computer threat data with the government in an effort to prevent cyber­attacks. On the heels of a destructive attack at Sony Pictures Entertainment and major breaches at JPMorgan Chase and retail chains, Obama is intent on capitalizing on the heightened sense of urgency to improve the security of the nation’s networks, officials said. “He’s been doing everything he can within his executive authority to move the ball on this,” said a senior administration official who spoke on the condition of anonymity to discuss legislation that has not yet been released. “We’ve got to get something in place that allows both industry and government to work more closely together.”
  • The legislation is part of a broader package, to be sent to Capitol Hill on Tuesday, that includes measures to help protect consumers and students against ­cyberattacks and to give law enforcement greater authority to combat cybercrime. The provision’s goal is to “enshrine in law liability protection for the private sector for them to share specific information — cyberthreat indicators — with the government,” the official said. Some analysts questioned the need for such legislation, saying there are adequate measures in place to enable sharing between companies and the government and among companies.
  • “We think the current information-sharing regime is adequate,” said Mark Jaycox, legislative analyst at the Electronic Frontier Foundation, a privacy group. “More companies need to use it, but the idea of broad legal immunity isn’t needed right now.” The administration official disagreed. The lack of such immunity is what prevents many companies from greater sharing of data with the government, the official said. “We have heard that time and time again,” the official said. The proposal, which builds on a 2011 administration bill, grants liability protection to companies that provide indicators of cyberattacks and threats to the Department of Homeland Security.
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  • But in a provision likely to raise concerns from privacy advocates, the administration wants to require DHS to share that information “in as near real time as possible” with other government agencies that have a cybersecurity mission, the official said. Those include the National Security Agency, the Pentagon’s ­Cyber Command, the FBI and the Secret Service. “DHS needs to take an active lead role in ensuring that unnecessary personal information is not shared with intelligence authorities,” Jaycox said. The debates over government surveillance prompted by disclosures from former NSA contractor Edward Snowden have shown that “the agencies already have a tremendous amount of unnecessary information,” he said.
  • The administration official stressed that the legislation will require companies to remove unnecessary personal information before furnishing it to the government in order to qualify for liability protection. It also will impose limits on the use of the data for cybersecurity crimes and instances in which there is a threat of death or bodily harm, such as kidnapping, the official said. And it will require DHS and the attorney general to develop guidelines for the federal government’s use and retention of the data. It will not authorize a company to take offensive cyber-measures to defend itself, such as “hacking back” into a server or computer outside its own network to track a breach. The bill also will provide liability protection to companies that share data with private-sector-developed organizations set up specifically for that purpose. Called information sharing and analysis organizations, these groups often are set up by particular industries, such as banking, to facilitate the exchange of data and best practices.
  • Efforts to pass information-sharing legislation have stalled in the past five years, blocked primarily by privacy concerns. The package also contains provisions that would allow prosecution for the sale of botnets or access to armies of compromised computers that can be used to spread malware, would criminalize the overseas sale of stolen U.S. credit card and bank account numbers, would expand federal law enforcement authority to deter the sale of spyware used to stalk people or commit identity theft, and would give courts the authority to shut down botnets being used for criminal activity, such as denial-of-service attacks.
  • It would reaffirm that federal racketeering law applies to cybercrimes and amends the Computer Fraud and Abuse Act by ensuring that “insignificant conduct” does not fall within the scope of the statute. A third element of the package is legislation Obama proposed Monday to help protect consumers and students against cyberattacks. The theft of personal financial information “is a direct threat to the economic security of American families, and we’ve got to stop it,” Obama said. The plan, unveiled in a speech at the Federal Trade Commission, would require companies to notify customers within 30 days after the theft of personal information is discovered. Right now, data breaches are handled under a patchwork of state laws that the president said are confusing and costly to enforce. Obama’s plan would streamline those into one clear federal standard and bolster requirements for companies to notify customers. Obama is proposing closing loopholes to make it easier to track down cybercriminals overseas who steal and sell identities. “The more we do to protect consumer information and privacy, the harder it is for hackers to damage our businesses and hurt our economy,” he said.
  • In October, Obama signed an order to protect consumers from identity theft by strengthening security features in credit cards and the terminals that process them. Marc Rotenberg, executive director of the Electronic Privacy Information Center, said there is concern that a federal standard would “preempt stronger state laws” about how and when companies have to notify consumers. The Student Digital Privacy Act would ensure that data entered would be used only for educational purposes. It would prohibit companies from selling student data to third-party companies for purposes other than education. Obama also plans to introduce a Consumer Privacy Bill of Rights. And the White House will host a summit on cybersecurity and consumer protection on Feb. 13 at Stanford University.
Paul Merrell

NSA had German spies target Euro allies - The Local - 0 views

www.thelocal.de/...erman-spies-target-euro-allies

surveillance state NSA BND Germany

shared by Paul Merrell on 26 Apr 15 - No Cached
  • German spies targeted politicians in friendly European nations and inside Germany for surveillance on behalf of the US National Security Agency (NSA), a media report revealed on Thursday. Net company drags German spies to court (23 Apr 15) Liberals: Data retention unconstitutional (17 Apr 15) Ministers want phone data stored for ten weeks (15 Apr 15)
  • Der Spiegel reported that the US spy agency sent Germany's foreign intelligence agency, the Bundesnachrictendienst (BND), huge numbers of “selectors” – computer addresses, mobile phone numbers and other identifying information – which are used to target people's digital communications. Die Zeit reported that the NSA asked for a total of 800,000 people to be targeted for surveillance. The BND simply plugged the personal details into their own systems and carried out the intimate surveillance on behalf of their American allies.
  • BND officers had noticed several times since 2008 that some of the selectors directly contradicted the rules on how the agency is supposed to work, and its co-operation agreement for the “War on Terror” Germany signed with the USA in 2002. The Americans reportedly asked for information on arms manufacturer EADS, the Eurocopter helicopter company and the French government. But this was not seen by their superiors as a reason to regularly check the lists of selectors for irregularities. It was only after leaks by NSA whistleblower Edward Snowden began in summer 2013, revealing the extent of the surveillance by the American spies against the entire world's communications, that the BND began checking in detail.
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  • By October 2013, they had discovered that around 2,000 of the selectors were definitely targeted at western Europe and even Germany. Politicians were among the people picked out for the illegal spying. But the true extent of the scandal wasn't revealed until the Bundestag's (German parliament) NSA Inquiry Committee submitted a request for evidence to the BND.
  • A fresh check of the selectors supplied by the NSA showed that 40,000 of them identified western European and German targets. Chancellor Angela Merkel's office, to which the BND is directly responsible, was not informed about the spying on friendly targets until after that parliamentary question was asked, in March 2015.
Paul Merrell

Is the Government's Aerial Smartphone Surveillance Program Legal? | TIME - 0 views

time.com/...government-aerial-surveillance

surveillance-state DoJ aerial-stingrays location-data

shared by Paul Merrell on 18 Nov 14 - No Cached
  • Still, is the Justice Department’s airborne dragnet program legal? The answer is “maybe.” Federal authorities have employed similar tools in the past. The Federal Bureau of Investigation is known to use a surveillance tool called a “stingray,” a portable transceiver that tricks cell phones within a certain area into relaying their locations, not unlike the equipment onboard the Marshals’ aircraft. A government vehicle with a stingray can net hundreds of nearby cell phones’ approximate locations just by driving through a typical neighborhood. The government has said it doesn’t need a probable cause warrant to use stingrays because investigators don’t collect the content of phone calls, just the locations of those phones. Government officials, meanwhile, have said they get court approval to use the devices. Much of the government’s warrantless use of stingray-style technology hinges on a 1979 Supreme Court decision titled Smith v. Maryland. Smith involved law enforcement’s use of a device called a pen register that, when attached to a suspect’s phone line, recorded the numbers of outgoing calls, but not the calls themselves. The Smith decision upheld the warrantless use of such devices because the suspect’s phone company would record the same data picked up by the pen register, and therefore the suspect had no reasonable expectation of privacy when it came to that information. Currently, the law requires a court to approve the use of a pen register, but investigators only have to show that the device’s use is “relevant to an ongoing criminal investigation,” a much weaker standard than a probable cause warrant requires.
  • However, to get back to the Smith decision, wireless carriers do store your location history for several months to several years, information they obtain by keeping a record of the cell towers to which your device connects as you move from place to place. That could mean Americans don’t have a reasonable expectation of privacy over their location data and the Smith precedent applies, making the DoJ’s aerial surveillance program legal. Still, that would be a matter for the courts to decide. “There are a lot of tricky questions whether a stingray or dirtbox operated by the government directly is a pen register, or the Fourth Amendment concerns dismissed by the Supreme Court 35 years ago in Smith v. Maryland are more applicable here,” Fakhoury said.
  • Hanni Fakhoury, an attorney at the pro-privacy Electronic Frontier Foundation, says the Department of Justice could use the Smith precedent as legal justification for the airborne dirtbox program. However, Fakhoury also highlighted a key problem with that argument: Location. Pen registers aren’t intended to pick up location data beyond an area code, whereas the airborne dirtboxes can track a person down to a single building. Many courts, he said, have expressed that location data deserves greater constitutional protection than is afforded to other kinds of information.
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  • Civil rights groups are raising serious constitutional questions about the Justice Department’s use of dragnet technology onboard aircraft to collect data from suspects’ cell phones, as reported by the Wall Street Journal Thursday.
  • The Justice Department said it could not confirm or deny the existence of the program. But a department official said that all federal investigations are consistent with federal law and are subject to court approval. That official also said the Marshals Service does not maintain any databases of cell phone information — meaning the program could possibly only be used to track the whereabouts of suspects on a case-by-case basis and that it’s vastly different in nature from the kinds of sweeping government surveillance programs first revealed by Edward Snowden.
  • Paul Merrell on 18 Nov 14
     
    Smith v. Maryland is a dead precedent for mass surveillance after the Supreme Court's ruling in Riley v. California. It awaits only the judicial coup de grace. 
Paul Merrell

Republican Party Calls For End To NSA Domestic Phone Records Program | TIME.com - 0 views

swampland.time.com/...nvestigation-into-nsa-snooping

surveillance state NSA NSA-blowback RNC-resolution

shared by Paul Merrell on 26 Jan 14 - No Cached
  • In the latest indication of a growing libertarian wing of the GOP, the Republican National Committee passed a resolution Friday calling for an investigation into the “gross infringement” of Americans’ rights by National Security Agency programs that were revealed by Edward Snowden. The resolution also calls on on Republican members of Congress to enact amendments to the Section 215 law that currently allows the spy agency to collect records of almost every domestic telephone call. The amendment should make clear that “blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court,” the resolution reads.
  • The measure, the “Resolution to Renounce the National Security Agency’s Surveillance Program,” passed by an “overwhelming majority” by voice vote, along with resolutions calling for the repeal of the Foreign Account Tax Compliance Act and reaffirming the party’s pro-life stance, according to Reince Priebus, the RNC chairman. Among other points, the resolution declares “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution,” a claim embraced by civil libertarians of both parties. The revelation of the NSA programs has caused deepened a rift within the Republican Party between national security hawks and libertarians, but at the meeting, no RNC member rose to speak against the resolution.
  • WHEREAS, the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause, and generally prevents the American government from issuing modern-day writs of assistance; WHEREAS, unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act; and WHEREAS, Republican House Representative Jim Sensenbrenner, an author of the Patriot Act and Chairman of the House Judiciary Committee at the time of Section 215′s passage, called the Section 215 surveillance program “an abuse of that law,” writing that, “based on the scope of the released order, both the administration and the FISA (Foreign Intelligence Surveillance Act) court are relying on an unbounded interpretation of the act that Congress never intended,” therefore be it
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  • The full text of the resolution as given to TIME follows below: Resolution to Renounce the National Security Agency’s Surveillance Program WHEREAS, the secret surveillance program called PRISM targets, among other things, the surveillance of U.S. citizens on a vast scale and monitors searching habits of virtually every American on the internet; WHEREAS, this dragnet program is, as far as we know, the largest surveillance effort ever launched by a democratic government against its own citizens, consisting of the mass acquisition of Americans’ call details encompassing all wireless and landline subscribers of the country’s three largest phone companies; WHEREAS, every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation, all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution;
  • RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court; RESOLVED, the Republican National Committee encourages Republican lawmakers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying and the committee should create specific recommendations for legal and regulatory reform ot end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance; and
  • RESOLVED, the Republican National Committee encourages Republican lawmakers to immediately take action to halt current unconstitutional surveillance programs and provide a full public accounting of the NSA’s data collection programs.
  • Paul Merrell on 26 Jan 14
     
    That's more like it! Notice that the call is for a "special committee to investigate," etc., not the House Intelligence Committee chaired by Mike Rogers.  Note also the call for heads to roll.
  • Paul Merrell on 26 Jan 14
     
    Something messed up in the quoting of the resolution. Please go to the linked web site for the resolution's full text.
Paul Merrell

UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights - ... - 0 views

firstlook.org/...ort-condemns-mass-surveillance

surveillance state UN-report digital-privacy

shared by Paul Merrell on 16 Oct 14 - No Cached
  • The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”
  • Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”
  • The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”
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  • Instead, explained the Rapporteur, states have relied on vague claims whose validity cannot be assessed because of the secrecy behind which these programs are hidden: “The arguments in favor of a complete abrogation of the right to privacy on the Internet have not been made publicly by the States concerned or subjected to informed scrutiny and debate.” About the ongoing secrecy surrounding the programs, the report explained that “states deploying this technology retain a monopoly of information about its impact,” which is “a form of conceptual censorship … that precludes informed debate.” A June report from the High Commissioner for Human Rights similarly noted “the disturbing lack of governmental transparency associated with surveillance policies, laws and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability.” The rejection of the “terrorism” justification for mass surveillance as devoid of evidence echoes virtually every other formal investigation into these programs. A federal judge last December found that the U.S. Government was unable to “cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.” Later that month, President Obama’s own Review Group on Intelligence and Communications Technologies concluded that mass surveillance “was not essential to preventing attacks” and information used to detect plots “could readily have been obtained in a timely manner using conventional [court] orders.”
  • Three Democratic Senators on the Senate Intelligence Committee wrote in The New York Times that “the usefulness of the bulk collection program has been greatly exaggerated” and “we have yet to see any proof that it provides real, unique value in protecting national security.” A study by the centrist New America Foundation found that mass metadata collection “has had no discernible impact on preventing acts of terrorism” and, where plots were disrupted, “traditional law enforcement and investigative methods provided the tip or evidence to initiate the case.” It labeled the NSA’s claims to the contrary as “overblown and even misleading.” While worthless in counter-terrorism policies, the UN report warned that allowing mass surveillance to persist with no transparency creates “an ever present danger of ‘purpose creep,’ by which measures justified on counter-terrorism grounds are made available for use by public authorities for much less weighty public interest purposes.” Citing the UK as one example, the report warned that, already, “a wide range of public bodies have access to communications data, for a wide variety of purposes, often without judicial authorization or meaningful independent oversight.”
  • The report was most scathing in its rejection of a key argument often made by American defenders of the NSA: that mass surveillance is justified because Americans are given special protections (the requirement of a FISA court order for targeted surveillance) which non-Americans (95% of the world) do not enjoy. Not only does this scheme fail to render mass surveillance legal, but it itself constitutes a separate violation of international treaties (emphasis added): The Special Rapporteur concurs with the High Commissioner for Human Rights that where States penetrate infrastructure located outside their territorial jurisdiction, they remain bound by their obligations under the Covenant. Moreover, article 26 of the Covenant prohibits discrimination on grounds of, inter alia, nationality and citizenship. The Special Rapporteur thus considers that States are legally obliged to afford the same privacy protection for nationals and non-nationals and for those within and outside their jurisdiction. Asymmetrical privacy protection regimes are a clear violation of the requirements of the Covenant.
  • That principle — that the right of internet privacy belongs to all individuals, not just Americans — was invoked by NSA whistleblower Edward Snowden when he explained in a June, 2013 interview at The Guardian why he disclosed documents showing global surveillance rather than just the surveillance of Americans: “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%.” The U.N. Rapporteur was clear that these systematic privacy violations are the result of a union between governments and tech corporations: “States increasingly rely on the private sector to facilitate digital surveillance. This is not confined to the enactment of mandatory data retention legislation. Corporates [sic] have also been directly complicit in operationalizing bulk access technology through the design of communications infrastructure that facilitates mass surveillance. ”
  • The latest finding adds to the growing number of international formal rulings that the mass surveillance programs of the U.S. and its partners are illegal. In January, the European parliament’s civil liberties committee condemned such programs in “the strongest possible terms.” In April, the European Court of Justice ruled that European legislation on data retention contravened EU privacy rights. A top secret memo from the GCHQ, published last year by The Guardian, explicitly stated that one key reason for concealing these programs was fear of a “damaging public debate” and specifically “legal challenges against the current regime.” The report ended with a call for far greater transparency along with new protections for privacy in the digital age. Continuation of the status quo, it warned, imposes “a risk that systematic interference with the security of digital communications will continue to proliferate without any serious consideration being given to the implications of the wholesale abandonment of the right to online privacy.” The urgency of these reforms is underscored, explained the Rapporteur, by a conclusion of the United States Privacy and Civil Liberties Oversight Board that “permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”
Paul Merrell

NSA giving 'a lot of thought' to privacy rights of overseas citizens - top lawyer | Wor... - 0 views

www.theguardian.com/...f-overseas-citizens-top-lawyer

surveillance state NSA EO-12333

shared by Paul Merrell on 01 Nov 13 - No Cached
  • The top lawyer for the US intelligence community and the National Security Agency said on Wednesday that the spy agencies are giving new consideration to the privacy rights of non-Americans in the wake of a diplomatic row over the surveillance of foreign leaders. Speaking at a conference on national security law sponsored by the American Bar Association on Thursday, the general counsel for the office of the director of national intelligence, Robert Litt, said intelligence chiefs were giving "a lot of thought" to the issue. His comments came a day after General Keith Alexander, the NSA director, stated that the spy agency is open to scaling back some of its operations on foreign leaders, following an unfolding diplomatic crisis sparked by revelations that the NSA spied on German chancellor Angela Merkel. 
  • US law provides greater legal protection to those defined as "US persons", which includes American citizens and foreigners living in the US. "On the issue of US person versus non-US person, that’s an issue we’re giving a lot of thought to now,” said Litt. “It’s not surprising that the law gives more protections to US citizens or persons who are in this country,” Litt added. “That doesn’t mean that we have no protection for non-US persons, and the principal protection we have is the requirement that the collection, retention and dissemination of information has to be for a valid foreign intelligence purpose.” Litt said the intelligence agencies were “giving some thought to whether there are ways that we can both introduce a little more rigor into that requirement and perhaps a little more transparency into how we enforce that requirement.” Litt and NSA general counsel Rajesh De would not answer a question from the Guardian about the legal basis for a different, unfolding NSA controversy: the new allegation that the NSA intercepts data transiting between the foreign data centers of Google and Yahoo, two longtime NSA partners, published in the Washington Post.
  • But De took issue with a suggestion that the Post story prompted that the NSA interception would at times rely on a seminal executive order that defines basic powers and operations of the intelligence agencies, known as Executive Order 12333, rather than the relatively restrictive Foreign Intelligence Surveillance Act, or Fisa. “The implication, the insinuation, the suggestion or the outright statement that an agency like NSA would use authority under Executive Order 12333 to evade, skirt or go around Fisa is simply inaccurate,” De said. On Tuesday, the director of national intelligence, James Clapper, testified to the House intelligence panel that they considered US corporations to be “US persons,” meaning their communications and associated data enjoyed legal privileges associated with citizenship. But neither Litt nor De would explain whether that category protected communications data transiting between the data centers of US companies.
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  • Both Litt and De spoke hours before the Senate intelligence committee was due to begin a second day of considering chairwoman Dianne Feinstein’s proposal to increase transparency around the NSA’s surveillance activities. A Tuesday afternoon markup session of the bill – whose text is not yet public – went uncompleted. Feinstein, previously an unequivocal supporter of the NSA, unexpectedly criticized the agency’s surveillance on foreign leaders, a relatively traditional surveillance function. Feinstein on Monday declared herself “totally opposed” to the collection and suggested her oversight committee was not “fully informed” of the practice. A similar rift has emerged between NSA and the White House over how much President Obama knew about the spying, which US officials have said does not currently take place and will not resume. Litt appeared to concede that Obama himself may not have known about spying on Merkel, but contended that the White House and Senate intelligence committee had all the information necessary to understand it was taking place.
  • “I completely disagree with the proposition that the fact that the president and the chairman of the Senate intelligence committee didn’t know every single one of these selectors the NSA was tasking means there is ineffective oversight,” Litt said. “What the president knew and what the Senate intelligence committee knows: they know what our intelligence priorities are. Those are set annually through the interagency process. That says, here’s the kind of information we need to collect. And that gets sent out to the intelligence community and then the intelligence community, through a process that works down through the ranks, figures out what’s the best way to select that. “It’s very easy in hindsight to say, well, this particular selector was sensitive and so the president should have been told that,” Litt continued. “That’s always true in hindsight. Virtually everything we do, if it comes out, is going to be embarrassing.”
  • Paul Merrell on 01 Nov 13
     
    So if they're not relying on either FISA or EO 12333, are they simply ignoring any legal restraints on the Agency? It's interesting that the NSA house of cards only crumbled with the announcement of spying on 35 foreign national leaders. Personally, I'd vote for putting the leader of every nation in a glass house, butt naked, and able to communicate with others only through a loudspeaker/broadcast system audible to everyone in the world. Secrecy in government is the problem, not a solution. 
Paul Merrell

NUJ members under police surveillance mount collective legal challenge - National Union... - 0 views

www.nuj.org.uk/...illance-mount-collective-legal

UK civil-liberties freedom-of-the-press terrorism™ police-crackdown journalism

shared by Paul Merrell on 23 Nov 14 - No Cached
  • Six NUJ members have discovered that their lawful journalistic and union activities are being monitored and recorded by the Metropolitan Police. They are now taking legal action against the Metropolitan Police Commissioner and the Home Secretary to challenge this ongoing police surveillance. The NUJ members involved in the legal challenge include Jules Mattsson, Mark Thomas, Jason Parkinson, Jess Hurd, David Hoffman and Adrian Arbib. All of them have worked on media reports that have exposed corporate and state misconduct and they have each also previously pursued litigation or complaints arising from police misconduct. In many of those cases, the Metropolitan Police Commissioner has been forced to pay damages, apologise and admit liability to them after their journalistic rights were curtailed by his officers at public events.
  • The surveillance was revealed as part of an ongoing campaign, which began in 2008, during which NUJ members have been encouraged to obtain data held about them by the authorities including the Metropolitan Police 'National Domestic Extremism and Disorder Intelligence Unit' (NDEDIU). The supposed purpose of the unit is to monitor and police so called 'domestic extremism'. In the course of the campaign, a number of NUJ members have obtained data held about them and the union fears there are many more journalists and union members being monitored.
  • The NUJ has instructed Bhatt Murphy Solicitors to pursue the case. The cases raise significant and wide-ranging concerns about: the impact on privacy, the chilling effect on the ability of NUJ members and journalists to do their jobs, and their ability to take part in legitimate trade union activity. The claim challenges the surveillance and retention of data on the basis that it is unnecessary, disproportionate and not in accordance with the law. Journalists and union members have no way of knowing the circumstances in which their activities are monitored, retained, disclosed and systematically stored on secret police 'domestic extremism' databases. The NUJ continues to offer support and assistance to the members involved and extends its support to other media workers who may be affected. The union is extremely concerned by the lack of legal safeguards to protect the press and trade unions from state interference, and believes the actions of the authorities do not abide by domestic law and the European Convention on Human Rights, including Article 8 on privacy, Article 10 on freedom of expression and Article 11 on freedom of assembly and association.
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  • I'm A Photographer Not A Terrorist – NUJ supported campaign. Met's journalist files include details of sexual orientation, childhood and family medical history - Jules MattssonTimes journalist Jules Mattsson is one of six members of the NUJ to launch a legal challenge against the Metropolitan Police after finding that it keeps surveillance files on them in a database of Domestic Extremism. When police spy on journalists like me, freedom is at risk - Jason N ParkinsonPersistent requests under the Data Protection Act revealed that files were kept on journalists who were simply doing their job IFJ backs legal challenge by journalists over police surveillance in UKThe International Federation of Journalists has joined in supporting six NUJ members who have taken legal action against the Metropolitan Police and the Home Secretary. The legal challenge concerns the monitoring and recording of their lawful journalistic and union activities.
  • Paul Merrell on 23 Nov 14
     
    Two excellent short videos on this page. It's disturbing that police are ignoring the EU Convention on Human Rights. Related, legislation is currently in Parliament to grant the government the power to censor any form of "extremism" on the Web, with the term "extremism" left undefined.   Civil liberties have been under attack in the UK for at least 1,000 years. Time for a new Magna Carta?
Paul Merrell

NSA phone surveillance program likely unconstitutional, federal judge rules | World new... - 0 views

www.theguardian.com/...-likely-unconstitutional-judge

surveillance state NSA call-metadata litigation 4th Amendment constitutional law NSA-blowback

shared by Paul Merrell on 17 Dec 13 - No Cached
  • A federal judge in Washington ruled on Monday that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by the whistleblower Edward Snowden. Judge Richard Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was "almost Orwellian" in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be "aghast" at the scope of the agency’s collection of Americans' communications data. The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the supreme court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.
  • In Monday’s ruling, the judge concluded that the pair's constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, Leon put the ruling on hold, pending an appeal by the government. Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,” he wrote.
  • Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional. “Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,” he wrote. Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was "indiscriminatory" and "arbitrary" in its scope. "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote, referring to the year in which the US supreme court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program.
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  • In a statement, Snowden said the ruling justified his disclosures. “I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," he said in comments released through Glenn Greenwald, the former Guardian journalist who received leaked documents from Snowden. "Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
  • In his ruling, Judge Leon expressly rejected the government’s claim that the 1979 supreme court case, Smith v Maryland, which the NSA and the Obama administration often cite to argue that there is no reasonable expectation of privacy over metadata, applies in the NSA’s bulk-metadata collection. The mass surveillance program differs so much from the one-time request dealt with by the 1979 case that it was of “little value” in assessing whether the metadata dragnet constitutes a fourth amendment search.
  • In a decision likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
  • Leon also struck a blow for judicial review of government surveillance practices even when Congress explicitly restricts the ability of citizens to sue for relief. “While Congress has great latitude to create statutory schemes like Fisa,” he wrote, referring to the seminal 1978 surveillance law, “it may not hang a cloak of secrecy over the constitution.”
  • In his ruling on Monday, Judge Leon predicted the process would take six months. He urged the government to take that time to prepare for an eventual defeat. “I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld,” wrote Leon in his opinion. “Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
  • Paul Merrell on 17 Dec 13
     
    This is the case I thought was the weakest because of poor drafting in the complaint. The judge noted those issues in dismissing the plaintiffs' claims under the Administrative Procedures Act, but picked his way through what remained to find sufficient allegations to support the 4th Amendment challenge. Because he ruled for the plaintiffs on the 4th Amendment count, the judge did not reach the plaintiffs' arguments under the First and Fifth Amendments. This case is about cellphone call metadata, which the FISA Court has been ordering cell phone companies to provide every day, with the orders updated every 90 days. The judge's 68-page opinion is at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0881-40 (cleaner copy than the Guardian's, which was apparently faxed). Notably, the judge, Richard Leon, is a Bush II appointee and one of the plaintiffs is a prominent conservative civil libertarian lawyer. The other plaintiff is the father of an NSA cryptologist who worked closely with SEAL Team 6 and was killed along with members of that team when their helicopter crashed in Afghanistan. I'll add some more in a comment. But digital privacy is not yet dead.
  • Paul Merrell on 17 Dec 13
     
    Unfortunately, DRM is not dead yet either and the court's PDF file is locked. No easy copying of its content. If you want to jump directly to the discussion of 4th Amendment issues, go to page 35. That way, you can skip past all the dreary discussion of the Administrative Procedures Act claim and you won't miss much that's memorable. In ruling on the plaintiffs' standing to raise the 4th Amendment claim, Judge Leon postulated two possible search issues: [i] the bulk daily collection of metadata and its retention in the database for five years; and [ii] the analysis of that data through the NSA's querying process. The judge had no difficulty with the first issue; it definitely qualifies as a search. But the judge rejected the plaintiffs' argument on the second type (which was lame), demonstrating that at least one federal judge understands how computers work. The government's filings indicated that a "seed" telephone number or other identifier is used as the query string. Judge Leon figured out for himself from this fact that the NSA of necessity had to compare that number or identifier to every number or identifier in its database looking for a match. The judge concluded that the plaintiffs' metadata --- indeed everyone's metadata --- had to be searched for comparison purposes *every* time the NSA analysts ran any query against the database. See his incisive discussion at pp. 39-41. So having established that two searches were involved, one every time the NSA queried the database, the judge moved on to the next question, whether "the plaintiffs had a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets." pg. 43. More later
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