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Gary Edwards

Ted Cruz: Legal Limit Report 4 - 0 views

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Ted-Cruz rule-of-law

shared by Gary Edwards on 07 May 14 - No Cached
  • Gary Edwards on 07 May 14
     
    "  1 THE LEGAL LIMIT: THE OBAMA ADMINISTRATION'S ATTEMPTS TO EXPAND FEDERAL POWER  Report No. 4: The Obama Administration's Abuse of Power By U.S. Senator Ted Cruz (R-TX) Ranking Member Senate Judiciary Subcommittee on The Constitution, Civil Rights and Human Rights Of all the troubling aspects of the Obama presidency, none is more dangerous than the President's persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat. The President's taste for unilateral action to circumvent Congress should concern every citizen, regardless of party or ideology. The great 18th-century political philosopher Montesquieu observed: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." America's Founding Fathers took this warning to heart, and we should too. Rule of law doesn't simply mean that society has laws; dictatorships are often characterized by an abundance of laws. Rather, rule of law means that we are a nation ruled   by laws, not men. No one-and especially not the president-is above the law. For that reason, the U.S. Constitution imposes on every president the express duty to "take Care that the Laws be faithfully executed." R ather than honor this duty, President Obama has openly defied it by repeatedly suspending, delaying, and waiving portions of the laws that he is charged to enforce. When President Obama disagreed with federal immigration laws, he instructed the Justice Department to cease enforcing the laws. He did the same thing with federal welfare law, drug laws, and the federal Defense of Marriage Act. In the more than two centuries of our nation's history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same. For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore th
  • Gary Edwards on 08 May 14
     
    "  1 THE LEGAL LIMIT: THE OBAMA ADMINISTRATION'S ATTEMPTS TO EXPAND FEDERAL POWER  Report No. 4: The Obama Administration's Abuse of Power By U.S. Senator Ted Cruz (R-TX) Ranking Member Senate Judiciary Subcommittee on The Constitution, Civil Rights and Human Rights Of all the troubling aspects of the Obama presidency, none is more dangerous than the President's persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat. The President's taste for unilateral action to circumvent Congress should concern every citizen, regardless of party or ideology. The great 18th-century political philosopher Montesquieu observed: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." America's Founding Fathers took this warning to heart, and we should too. Rule of law doesn't simply mean that society has laws; dictatorships are often characterized by an abundance of laws. Rather, rule of law means that we are a nation ruled   by laws, not men. No one-and especially not the president-is above the law. For that reason, the U.S. Constitution imposes on every president the express duty to "take Care that the Laws be faithfully executed." R ather than honor this duty, President Obama has openly defied it by repeatedly suspending, delaying, and waiving portions of the laws that he is charged to enforce. When President Obama disagreed with federal immigration laws, he instructed the Justice Department to cease enforcing the laws. He did the same thing with federal welfare law, drug laws, and the federal Defense of Marriage Act. In the more than two centuries of our nation's history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same. For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore the law, or unil
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.”
  • 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 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.
  • 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 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

FindLaw | Cases and Codes - 0 views

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surveillance state NSA pen-register 4th Amendment

shared by Paul Merrell on 20 Jun 13 - No Cached
  • SMITH v. MARYLAND, 442 U.S. 735 (1979)
  • The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed. Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746. (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347 . Pp. 739-741.
  • (b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736]   to the police, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746. 283 Md. 156, 389 A. 2d 858, affirmed.
  • Paul Merrell on 20 Jun 13
     
    The Washington Post has reported that "on July 15 [2001], the secret surveillance court allowed the NSA to resume bulk collection under the court's own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as "pen register, trap and trace," that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line." .  The seminal case on pen registers is the Supreme Court's 1979 Smith v. Maryland decision, bookmarked here and the Clerk's syllabus highlighted, with the Court's discussion on the same web page. We will be hearing a lot about this case decision in the weeks and months to come.  Let it suffice for now to record a few points of what my antenna are telling me:  -- Both technology and the law have moved on since then. We are 34 years down the line from the Smith decision. Its pronouncements have been sliced and diced by subsequent decisions. Not a single Justice who sat on the Smith case is still on the High Bench.   -- In Smith, a single pen register was used to obtain calling information from a single telephone number by law enforcement officials. In the present circumstance, we face an Orwellian situation of a secret intelligence agency with no law enforcement authority forbidden by law from conducting domestic surveillance perusing and all digital communications of the entire citizenry. -- The NSA has been gathering not only information analogous to pen register results but also the communications of American citizens themselves. The communications themselves --- the contents --- are subject to the 4th Amendment warrant requirement. Consider the circuitous route of the records ordered to be disclosed in the Verizon FISA order. Verizon was ordered to disclose them to the FBI, not to the NSA. But then the FBI apparently forwards the records to the NSA, who has both the "pen register
Paul Merrell

Distrust of US surveillance threatens data deal | TheHill - 0 views

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surveillance state EU NSA safe-harbor negotiations Congress

shared by Paul Merrell on 08 Feb 16 - No Cached
  • European privacy regulators are putting U.S. surveillance practices under the microscope, this time with a crucial transatlantic data deal hanging in the balance.Legal and privacy advocates say European nations are poised to strike down the deal if they decide the U.S. hasn't done enough to reform its spying programs.The new test comes after the European Commission and the Commerce Department — after months of tense negotiations — reached a deal this week permitting Facebook, Google and thousands of other companies to continue legally handling Europeans’ personal data.ADVERTISEMENTCritics though have long warned that unless the U.S. overhauls its privacy and national security laws, there is no legal framework that can stand up in European court, where privacy is considered a fundamental right under the EU Charter.A working group of 28 EU nations’ data protection authorities — domestic entities separate from the Commission that will be in charge of enforcing the new agreement — may now cast the deciding vote.The group is spending the next few months picking through the so-called Privacy Shield agreement to determine if it adequately protects the personal data of European citizens.
  • “The Commission has said, ‘We’re satisfied. We believe them. We believe the U.S. has substantially changed its practices,’ and they are no longer going off the [Edward] Snowden revelations in the media,” said Susan Foster, a privacy attorney at Mintz Levin who works in both the EU and the U.S.“Whether the working group will go along with it is another question.”The privacy advocate whose complaint against Facebook brought down the Privacy Shield’s 15-year-old predecessor agreement is already questioning the new deal’s validity.“With all due respect ... a couple of letters by the outgoing Obama administration is by no means a legal basis to guarantee the fundamental rights of 500 million European users in the long run, when there is explicit U.S. law allowing mass surveillance,” Max Schrems of Austria said in a statement Tuesday.The United States has been fighting against the perception that it tramples on civil liberties after ex-National Security Agency contractor Edward Snowden revealed the breadth of the agency’s snooping.One sticking point in the Privacy Shield negotiations was over the scope of an exception allowing surveillance for national security purposes.
  • In announcing the deal, Commission officials insisted that the U.S. had provided “detailed written assurances” that surveillance of Europeans’ data by intelligence agencies would be subject to appropriate limitations.“The U.S. has clarified that they do not carry out indiscriminate surveillance of Europeans,” Andrus Ansip, Vice President for the Digital Single Market on the European Commission, said Tuesday.The U.S. has also agreed to create an office in the State Department, to address complaints from EU citizens who feel their data has been inappropriately accessed by intelligence authorities.Complicating the working group’s approval of the deal is the hodgepodge of competing regulators in Europe. Each nation has an agency in charge of its own country’s regulation. Some countries — such as Germany — are seen as tougher on privacy than others, like France or the U.K.While some countries consider U.S. privacy protections to be satisfactory, in others they are seen as woefully inadequate.
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  • Defenders of U.S. intelligence practices often point to France and the U.K., arguing they are equally intrusive with their citizens' data.A recent public report “pretty clearly documented that the protections are patchy, vary hugely and are nonexistent in some of the countries,” Foster noted.Privacy advocates dismiss those arguments.“You cannot pick the worst member state, like the U.K., and claim you are ‘equivalent’ to that,” Schrems said Tuesday. “First, this is not a price [sic] you want to win, secondly you have to meet the standards of the European Court of Justice, EU law and the EU Charter of Fundamental Rights — not the standard of the worst member state.”The U.S. has made significant reforms to federal spying powers under the Obama administration.The Privacy and Civil Liberties Oversight Board — a small bipartisan watchdog — on Friday said the government has begun addressing each of the nearly two-dozen recommendations it made following Snowden's revelations.“[I]mportant measures have been taken to enhance the protection of Americans’ privacy and civil liberties and to strengthen the transparency of the government’s surveillance efforts, without jeopardizing our counterterrorism efforts,” the five-member board said.
  • But whether European countries believe those changes are sufficient to sign off on the Privacy Shield is uncertain. Each of the EU’s 28 member states must approve the deal before it can be finalized.“A lot of this is going to come down to whether the data protection authorities are persuaded by the U.S.’s portrayal of the cumulative protections given to European citizens and the cumulative carving back on the NSA surveillance programs,” Foster said.If the European working group is not satisfied with the assurances from the Commerce Department, the consequences could be dire. Businesses fear a chilling of transatlantic trade, valued at $1 trillion in 2014.The most likely outcome, experts say, would be a patchwork of country-to-country regulations that would make it extremely expensive for companies to comply.Legislative changes in the U.S. seem unlikely. Congress is close to passing a privacy law considered crucial to getting seeing the Privacy Shield approved. But the bill — which gives EU citizens the right to sue in U.S. courts over the misuse of personal data — has sparked controversy on Capitol Hill.Some lawmakers are expressing frustration that the EU has used the threat of enforcement action against U.S. companies to push Congress to make more concessions.“It’s been hard enough to get the Judicial Redress Act passed — if they’re going to make more demands on Congress, there won’t be a lot of willing listeners here,” Sen. Chris Murphy (D-Conn.) told The Hill on Thursday.
Paul Merrell

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

thecable.foreignpolicy.com/...line_privacy_rights_everywhere

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

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

WorldLII - WorldLII: About WorldLII - 0 views

www.worldlii.org/worldlii

shared by Paul Merrell on 21 Sep 16 - No Cached
  • You are here: WorldLII >> About WorldLII   What is WorldLII? The World Legal Information Institute (WorldLII) is a free, independent and non-profit global legal research facility developed collaboratively by the following Legal Information Institutes and other organisations. Australasian Legal Information Institute (AustLII) British and Irish Legal Information Institute (BAILII) Canadian Legal Information Institute (CanLII) Hong Kong Legal Information Institute (HKLII) Legal Information Institute (Cornell) (LII (Cornell)) Pacific Islands Legal Information Institute (PacLII) Wits University School of Law (Wits Law School) For further details, see the WorldLII brochure. The LIIs, meeting in Montreal in October 2002, adopted the Montreal Declaration on public access to law. WorldLII comprises three main facilities: Databases, Catalog and Websearch.
  • WorldLII Databases WorldLII provides a single search facility for databases located on the following Legal Information Institutes: AustLII; BAILII; CanLII; HKLII; LII (Cornell); and PacLII. WorldLII also includes as part of this searchable collection its own databases not found on other LIIs. These include databases of decisions of international Courts and Tribunals, databases from a number of Asian countries, and databases from South Africa (provided by Wits Law School). Over 270 databases from 48 jurisdictions in 20 countries are included in the initial release of WorldLII. Databases of case-law, legislation, treaties, law reform reports, law journals, and other materials are included. WorldLII welcomes enquiries concerning the possible inclusion of other databases on WorldLII or on one of its collaborating LIIs. WorldLII Catalog and Websearch The WorldLII Catalog provides links to over 15,000 law-related web sites in every country in the world. WorldLII's Websearch makes searchable the full text of as many of these sites as WorldLII's web-spider can reach. WorldLII welcomes enquiries from law librarians and other legal experts who are interested to become Contributing Editors to the WorldLII Catalog.
  • Operation of WorldLII The provision of the WorldLII service is coordinated by the Australasian Legal Information Institute (AustLII), which maintains WorldLII's user interface, the WorldLII Catalog and Websearch, and the databases located only on WorldLII. Technical enhancements to WorldLII are being developed jointly by the cooperating Legal Information Institutes. Contacting WorldLII General contact: feedback@worldlii.org AustLII/WorldLII Co-Directors: Professor Andrew Mowbray, UTS <andrew@austlii.edu.au> Professor Graham Greenleaf, UNSW <graham@austlii.edu.au> Philip Chung, AustLII Executive Director <philip@austlii.edu.au> Mail: WorldLII, c/- AustLII, UTS Faculty of Law, PO Box 123 Broadway NSW 2007 Australia Telephone: +61 2 9514 4921 Fax: +61 2 9514 4908 We hope that you enjoy using WorldLII and find it to be a useful service. Feedback (particularly words of encouragement or constructive criticism) are welcome and may be sent to feedback@worldlii.org. WorldLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.worldlii.org/worldlii/
  • Paul Merrell on 21 Sep 16
     
    The various Legal information Institutes that collaborate on WorldLII have the most advanced, integrated, and largest public legal research databases available on the Internet, searchable through a common interface. Still nothing like a complete university law library because so many legal source materials are copyrighted, this is the combined effort of many law schools. A companion browser extension is available for Chrome and Firefox called Jureeka. That extension causes your pages rendered in the browser to contain hyperlinks to all legal authorities cited on the page that are recognized by the extension, with the links going to case law, regulations, and statues that are in the public domain. https://chrome.google.com/webstore/detail/jureeka/ediidjmindkcaflpfjgabfaibhngadbb?utm_source=chrome-app-launcher-info-dialog Thus far, Jureeka is integrated with all legal materials published by the Legal Information Institute long located at Cornell Law School, as well as the Justia archives of U.S. case law. Rumor has it that the extension will be extended to cover materials published by other Legal Information Institutes at various law schools around the globe.
Paul Merrell

How Edward Snowden Changed Everything | The Nation - 0 views

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surveillance state Snowden Wizner state-of-play civil-liberties must-read

shared by Paul Merrell on 16 Nov 15 - No Cached
  • Ben Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.
  • en Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.
  • Many of the technologies, both military technologies and surveillance technologies, that are developed for purposes of policing the empire find their way back home and get repurposed. You saw this in Ferguson, where we had military equipment in the streets to police nonviolent civil unrest, and we’re seeing this with surveillance technologies, where things that are deployed for use in war zones are now commonly in the arsenals of local police departments. For example, a cellphone surveillance tool that we call the StingRay—which mimics a cellphone tower and communicates with all the phones around—was really developed as a military technology to help identify targets. Now, because it’s so inexpensive, and because there is a surplus of these things that are being developed, it ends up getting pushed down into local communities without local democratic consent or control.
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  • SG & TP: How do you see the current state of the right to privacy? BW: I joked when I took this job that I was relieved that I was going to be working on the Fourth Amendment, because finally I’d have a chance to win. That was intended as gallows humor; the Fourth Amendment had been a dishrag for the last several decades, largely because of the war on drugs. The joke in civil liberties circles was, “What amendment?” But I was able to make this joke because I was coming to Fourth Amendment litigation from something even worse, which was trying to sue the CIA for torture, or targeted killings, or various things where the invariable outcome was some kind of non-justiciability ruling. We weren’t even reaching the merits at all. It turns out that my gallows humor joke was prescient.
  • The truth is that over the last few years, we’ve seen some of the most important Fourth Amendment decisions from the Supreme Court in perhaps half a century. Certainly, I think the Jones decision in 2012 [U.S. v. Jones], which held that GPS tracking was a Fourth Amendment search, was the most important Fourth Amendment decision since Katz in 1967 [Katz v. United States], in terms of starting a revolution in Fourth Amendment jurisprudence signifying that changes in technology were not just differences in degree, but they were differences in kind, and require the Court to grapple with it in a different way. Just two years later, you saw the Court holding that police can’t search your phone incident to an arrest without getting a warrant [Riley v. California]. Since 2012, at the level of Supreme Court jurisprudence, we’re seeing a recognition that technology has required a rethinking of the Fourth Amendment at the state and local level. We’re seeing a wave of privacy legislation that’s really passing beneath the radar for people who are not paying close attention. It’s not just happening in liberal states like California; it’s happening in red states like Montana, Utah, and Wyoming. And purple states like Colorado and Maine. You see as many libertarians and conservatives pushing these new rules as you see liberals. It really has cut across at least party lines, if not ideologies. My overall point here is that with respect to constraints on government surveillance—I should be more specific—law-enforcement government surveillance—momentum has been on our side in a way that has surprised even me.
  • Do you think that increased privacy protections will happen on the state level before they happen on the federal level? BW: I think so. For example, look at what occurred with the death penalty and the Supreme Court’s recent Eighth Amendment jurisprudence. The question under the Eighth Amendment is, “Is the practice cruel and unusual?” The Court has looked at what it calls “evolving standards of decency” [Trop v. Dulles, 1958]. It matters to the Court, when it’s deciding whether a juvenile can be executed or if a juvenile can get life without parole, what’s going on in the states. It was important to the litigants in those cases to be able to show that even if most states allowed the bad practice, the momentum was in the other direction. The states that were legislating on this most recently were liberalizing their rules, were making it harder to execute people under 18 or to lock them up without the possibility of parole. I think you’re going to see the same thing with Fourth Amendment and privacy jurisprudence, even though the Court doesn’t have a specific doctrine like “evolving standards of decency.” The Court uses this much-maligned test, “Do individuals have a reasonable expectation of privacy?” We’ll advance the argument, I think successfully, that part of what the Court should look at in considering whether an expectation of privacy is reasonable is showing what’s going on in the states. If we can show that a dozen or eighteen state legislatures have enacted a constitutional protection that doesn’t exist in federal constitutional law, I think that that will influence the Supreme Court.
  • The question is will it also influence Congress. I think there the answer is also “yes.” If you’re a member of the House or the Senate from Montana, and you see that your state legislature and your Republican governor have enacted privacy legislation, you’re not going to be worried about voting in that direction. I think this is one of those places where, unlike civil rights, where you saw most of the action at the federal level and then getting forced down to the states, we’re going to see more action at the state level getting funneled up to the federal government.
  • Paul Merrell on 16 Nov 15
     
    A must-read. Ben Wizner discusses the current climate in the courts in government surveillance cases and how Edward Snowden's disclosures have affected that, and much more. Wizner is not only Edward Snowden's lawyer, he is also the coordinator of all ACLU litigation on electronic surveillance matters.
Paul Merrell

CISA Security Bill: An F for Security But an A+ for Spying | WIRED - 0 views

www.wired.com/...ty-bill-gets-f-security-spying

surveillance state legislation CISA

shared by Paul Merrell on 23 Mar 15 - No Cached
  • When the Senate Intelligence Committee passed the Cybersecurity Information Sharing Act by a vote of 14 to 1, committee chairman Senator Richard Burr argued that it successfully balanced security and privacy. Fifteen new amendments to the bill, he said, were designed to protect internet users’ personal information while enabling new ways for companies and federal agencies to coordinate responses to cyberattacks. But critics within the security and privacy communities still have two fundamental problems with the legislation: First, they say, the proposed cybersecurity act won’t actually boost security. And second, the “information sharing” it describes sounds more than ever like a backchannel for surveillance.
  • On Tuesday the bill’s authors released the full, updated text of the CISA legislation passed last week, and critics say the changes have done little to assuage their fears about wanton sharing of Americans’ private data. In fact, legal analysts say the changes actually widen the backdoor leading from private firms to intelligence agencies. “It’s a complete failure to strengthen the privacy protections of the bill,” says Robyn Greene, a policy lawyer for the Open Technology Institute, which joined a coalition of dozens of non-profits and cybersecurity experts criticizing the bill in an open letter earlier this month. “None of the [privacy-related] points we raised in our coalition letter to the committee was effectively addressed.” The central concern of that letter was how the same data sharing meant to bolster cybersecurity for companies and the government opens massive surveillance loopholes. The bill, as worded, lets a private company share with the Department of Homeland Security any information construed as a cybersecurity threat “notwithstanding any other provision of law.” That means CISA trumps privacy laws like the Electronic Communication Privacy Act of 1986 and the Privacy Act of 1974, which restrict eavesdropping and sharing of users’ communications. And once the DHS obtains the information, it would automatically be shared with the NSA, the Department of Defense (including Cyber Command), and the Office of the Director of National Intelligence.
  • In a statement posted to his website yesterday, Senator Burr wrote that “Information sharing is purely voluntary and companies can only share cyber-threat information and the government may only use shared data for cybersecurity purposes.” But in fact, the bill’s data sharing isn’t limited to cybersecurity “threat indicators”—warnings of incoming hacker attacks, which is the central data CISA is meant to disseminate among companies and three-letter agencies. OTI’s Greene says it also gives companies a mandate to share with the government any data related to imminent terrorist attacks, weapons of mass destruction, or even other information related to violent crimes like robbery and carjacking. 
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  • The latest update to the bill tacks on yet another kind of information, anything related to impending “serious economic harm.” All of those vague terms, Greene argues, widen the pipe of data that companies can send the government, expanding CISA into a surveillance system for the intelligence community and domestic law enforcement. If information-sharing legislation does not include adequate privacy protections, then...It’s a surveillance bill by another name. Senator Ron Wyden
  • “CISA goes far beyond [cybersecurity], and permits law enforcement to use information it receives for investigations and prosecutions of a wide range of crimes involving any level of physical force,” reads the letter from the coalition opposing CISA. “The lack of use limitations creates yet another loophole for law enforcement to conduct backdoor searches on Americans—including searches of digital communications that would otherwise require law enforcement to obtain a warrant based on probable cause. This undermines Fourth Amendment protections and constitutional principles.”
  • Paul Merrell on 23 Mar 15
     
    I read the legislation. It's as bad for privacy as described in the aritcle. And its drafting is incredibly sloppy.
Paul Merrell

Privacy board report last straw on NSA surveillance program, lawmakers say | TheHill - 0 views

thehill.com/...traw-on-surveillance-lawmakers

surveillance state NSA NSA-reform Congress NSA-blowback Obama

shared by Paul Merrell on 29 Jan 14 - No Cached
  • Lawmakers are renewing their calls for an end to a controversial surveillance program that collects data about virtually all American phone calls, citing the newest recommendations from a government privacy board.This newest set of recommendations “spells the final end of the government's bulk collection” of phone call data, Rep. Adam Schiff (D-Calif.) said in a statement.The Privacy and Civil Liberties Oversight Board — tasked with overseeing the country’s surveillance activities — released its first report on the controversial surveillance programs made public by former National Security Agency contractor Edward Snowden last year.
  • The board recommended that the government end the phone data program, questioning its efficacy and saying that it “lacks a viable legal foundation” and “raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value.”Last week, President Obama outlined changes he plans to make to the surveillance program, including requiring intelligence agencies to get court approval before accessing the phone data.Critics of the NSA and its phone data program say Obama didn’t go far enough in his speech and are now pointing to the privacy board’s report as evidence that more needs to be done.“The president's recommendations last week did not go far enough to rein in the out-of-control National Security Agency,” Sen. Bernie Sanders (I-Vt.) — who has questioned the intelligence community on whether it spies on officials — said in a statement.
  • “This report underscores that the collection of records on virtually every phone call made in the United States is an unconstitutional violation of the privacy rights guaranteed by the Fourth Amendment,” he said, calling on Congress to “pass strong legislation to protect the privacy and civil liberties of the American people.”Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), co-author of the USA Freedom Act, which would end bulk surveillance programs, said the report highlights the need for congressional action.“The report appropriately calls into question the legality and constitutionality of the program, and underscores the need to change the law to rein in the government’s overbroad interpretation” of its surveillance authority, he said in a statement.Schiff called for congressional action before next year’s sunset of a surveillance-enabling national security law.“Congress will not re-authorize bulk collection of this data when it expires next year, but Congress should not wait for the program to expire on its own,” he said. “Rather we should work to restructure the program now.”
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  • House Judiciary Committee Chairman Bob Goodlatte (R-Va.) vowed to consider the report as his committee looks at the phone data program, which “is in need of significant reform.”In his statement, Goodlatte said he plans to hold a hearing “soon” to examine Obama’s announced plans to rein in surveillance, as well as the recommendations from the privacy board and a White House-convened group of privacy and intelligence experts.Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee and an ardent defender of the NSA, slammed the report, accusing the privacy board of overstepping its boundaries. 
  • Rogers pointed to the 17 federal judges who, in 38 cases, “examined this issue and found the telephone metadata program to be legal, concluding this program complies with both the statutory text and with the U.S. Constitution.”The privacy board should “advise policymakers on civil liberties and privacy aspects of national security programs, and not partake in unwarranted legal analysis” or “go outside its expertise to opine on the effectiveness of counterterrorism programs,” Rogers said in a statement. 
Paul Merrell

Cy Vance's Proposal to Backdoor Encrypted Devices Is Riddled With Vulnerabilities | Jus... - 0 views

www.justsecurity.org/...evices-riddled-vulnerabilities

surveillance state encryption-backdoors Vance tyranny right-to-whisper

shared by Paul Merrell on 11 Dec 15 - No Cached
  • Less than a week after the attacks in Paris — while the public and policymakers were still reeling, and the investigation had barely gotten off the ground — Cy Vance, Manhattan’s District Attorney, released a policy paper calling for legislation requiring companies to provide the government with backdoor access to their smartphones and other mobile devices. This is the first concrete proposal of this type since September 2014, when FBI Director James Comey reignited the “Crypto Wars” in response to Apple’s and Google’s decisions to use default encryption on their smartphones. Though Comey seized on Apple’s and Google’s decisions to encrypt their devices by default, his concerns are primarily related to end-to-end encryption, which protects communications that are in transit. Vance’s proposal, on the other hand, is only concerned with device encryption, which protects data stored on phones. It is still unclear whether encryption played any role in the Paris attacks, though we do know that the attackers were using unencrypted SMS text messages on the night of the attack, and that some of them were even known to intelligence agencies and had previously been under surveillance. But regardless of whether encryption was used at some point during the planning of the attacks, as I lay out below, prohibiting companies from selling encrypted devices would not prevent criminals or terrorists from being able to access unbreakable encryption. Vance’s primary complaint is that Apple’s and Google’s decisions to provide their customers with more secure devices through encryption interferes with criminal investigations. He claims encryption prevents law enforcement from accessing stored data like iMessages, photos and videos, Internet search histories, and third party app data. He makes several arguments to justify his proposal to build backdoors into encrypted smartphones, but none of them hold water.
  • Before addressing the major privacy, security, and implementation concerns that his proposal raises, it is worth noting that while an increase in use of fully encrypted devices could interfere with some law enforcement investigations, it will help prevent far more crimes — especially smartphone theft, and the consequent potential for identity theft. According to Consumer Reports, in 2014 there were more than two million victims of smartphone theft, and nearly two-thirds of all smartphone users either took no steps to secure their phones or their data or failed to implement passcode access for their phones. Default encryption could reduce instances of theft because perpetrators would no longer be able to break into the phone to steal the data.
  • Vance argues that creating a weakness in encryption to allow law enforcement to access data stored on devices does not raise serious concerns for security and privacy, since in order to exploit the vulnerability one would need access to the actual device. He considers this an acceptable risk, claiming it would not be the same as creating a widespread vulnerability in encryption protecting communications in transit (like emails), and that it would be cheap and easy for companies to implement. But Vance seems to be underestimating the risks involved with his plan. It is increasingly important that smartphones and other devices are protected by the strongest encryption possible. Our devices and the apps on them contain astonishing amounts of personal information, so much that an unprecedented level of harm could be caused if a smartphone or device with an exploitable vulnerability is stolen, not least in the forms of identity fraud and credit card theft. We bank on our phones, and have access to credit card payments with services like Apple Pay. Our contact lists are stored on our phones, including phone numbers, emails, social media accounts, and addresses. Passwords are often stored on people’s phones. And phones and apps are often full of personal details about their lives, from food diaries to logs of favorite places to personal photographs. Symantec conducted a study, where the company spread 50 “lost” phones in public to see what people who picked up the phones would do with them. The company found that 95 percent of those people tried to access the phone, and while nearly 90 percent tried to access private information stored on the phone or in other private accounts such as banking services and email, only 50 percent attempted contacting the owner.
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  • Vance attempts to downplay this serious risk by asserting that anyone can use the “Find My Phone” or Android Device Manager services that allow owners to delete the data on their phones if stolen. However, this does not stand up to scrutiny. These services are effective only when an owner realizes their phone is missing and can take swift action on another computer or device. This delay ensures some period of vulnerability. Encryption, on the other hand, protects everyone immediately and always. Additionally, Vance argues that it is safer to build backdoors into encrypted devices than it is to do so for encrypted communications in transit. It is true that there is a difference in the threats posed by the two types of encryption backdoors that are being debated. However, some manner of widespread vulnerability will inevitably result from a backdoor to encrypted devices. Indeed, the NSA and GCHQ reportedly hacked into a database to obtain cell phone SIM card encryption keys in order defeat the security protecting users’ communications and activities and to conduct surveillance. Clearly, the reality is that the threat of such a breach, whether from a hacker or a nation state actor, is very real. Even if companies go the extra mile and create a different means of access for every phone, such as a separate access key for each phone, significant vulnerabilities will be created. It would still be possible for a malicious actor to gain access to the database containing those keys, which would enable them to defeat the encryption on any smartphone they took possession of. Additionally, the cost of implementation and maintenance of such a complex system could be high.
  • Privacy is another concern that Vance dismisses too easily. Despite Vance’s arguments otherwise, building backdoors into device encryption undermines privacy. Our government does not impose a similar requirement in any other context. Police can enter homes with warrants, but there is no requirement that people record their conversations and interactions just in case they someday become useful in an investigation. The conversations that we once had through disposable letters and in-person conversations now happen over the Internet and on phones. Just because the medium has changed does not mean our right to privacy has.
  • In addition to his weak reasoning for why it would be feasible to create backdoors to encrypted devices without creating undue security risks or harming privacy, Vance makes several flawed policy-based arguments in favor of his proposal. He argues that criminals benefit from devices that are protected by strong encryption. That may be true, but strong encryption is also a critical tool used by billions of average people around the world every day to protect their transactions, communications, and private information. Lawyers, doctors, and journalists rely on encryption to protect their clients, patients, and sources. Government officials, from the President to the directors of the NSA and FBI, and members of Congress, depend on strong encryption for cybersecurity and data security. There are far more innocent Americans who benefit from strong encryption than there are criminals who exploit it. Encryption is also essential to our economy. Device manufacturers could suffer major economic losses if they are prohibited from competing with foreign manufacturers who offer more secure devices. Encryption also protects major companies from corporate and nation-state espionage. As more daily business activities are done on smartphones and other devices, they may now hold highly proprietary or sensitive information. Those devices could be targeted even more than they are now if all that has to be done to access that information is to steal an employee’s smartphone and exploit a vulnerability the manufacturer was required to create.
  • Vance also suggests that the US would be justified in creating such a requirement since other Western nations are contemplating requiring encryption backdoors as well. Regardless of whether other countries are debating similar proposals, we cannot afford a race to the bottom on cybersecurity. Heads of the intelligence community regularly warn that cybersecurity is the top threat to our national security. Strong encryption is our best defense against cyber threats, and following in the footsteps of other countries by weakening that critical tool would do incalculable harm. Furthermore, even if the US or other countries did implement such a proposal, criminals could gain access to devices with strong encryption through the black market. Thus, only innocent people would be negatively affected, and some of those innocent people might even become criminals simply by trying to protect their privacy by securing their data and devices. Finally, Vance argues that David Kaye, UN Special Rapporteur for Freedom of Expression and Opinion, supported the idea that court-ordered decryption doesn’t violate human rights, provided certain criteria are met, in his report on the topic. However, in the context of Vance’s proposal, this seems to conflate the concepts of court-ordered decryption and of government-mandated encryption backdoors. The Kaye report was unequivocal about the importance of encryption for free speech and human rights. The report concluded that:
  • States should promote strong encryption and anonymity. National laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption technology and tools that allow anonymity online. … States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows. Additionally, the group of intelligence experts that was hand-picked by the President to issue a report and recommendations on surveillance and technology, concluded that: [R]egarding encryption, the U.S. Government should: (1) fully support and not undermine efforts to create encryption standards; (2) not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software; and (3) increase the use of encryption and urge US companies to do so, in order to better protect data in transit, at rest, in the cloud, and in other storage.
  • The clear consensus among human rights experts and several high-ranking intelligence experts, including the former directors of the NSA, Office of the Director of National Intelligence, and DHS, is that mandating encryption backdoors is dangerous. Unaddressed Concerns: Preventing Encrypted Devices from Entering the US and the Slippery Slope In addition to the significant faults in Vance’s arguments in favor of his proposal, he fails to address the question of how such a restriction would be effectively implemented. There is no effective mechanism for preventing code from becoming available for download online, even if it is illegal. One critical issue the Vance proposal fails to address is how the government would prevent, or even identify, encrypted smartphones when individuals bring them into the United States. DHS would have to train customs agents to search the contents of every person’s phone in order to identify whether it is encrypted, and then confiscate the phones that are. Legal and policy considerations aside, this kind of policy is, at the very least, impractical. Preventing strong encryption from entering the US is not like preventing guns or drugs from entering the country — encrypted phones aren’t immediately obvious as is contraband. Millions of people use encrypted devices, and tens of millions more devices are shipped to and sold in the US each year.
  • Finally, there is a real concern that if Vance’s proposal were accepted, it would be the first step down a slippery slope. Right now, his proposal only calls for access to smartphones and devices running mobile operating systems. While this policy in and of itself would cover a number of commonplace devices, it may eventually be expanded to cover laptop and desktop computers, as well as communications in transit. The expansion of this kind of policy is even more worrisome when taking into account the speed at which technology evolves and becomes widely adopted. Ten years ago, the iPhone did not even exist. Who is to say what technology will be commonplace in 10 or 20 years that is not even around today. There is a very real question about how far law enforcement will go to gain access to information. Things that once seemed like merely science fiction, such as wearable technology and artificial intelligence that could be implanted in and work with the human nervous system, are now available. If and when there comes a time when our “smart phone” is not really a device at all, but is rather an implant, surely we would not grant law enforcement access to our minds.
  • Policymakers should dismiss Vance’s proposal to prohibit the use of strong encryption to protect our smartphones and devices in order to ensure law enforcement access. Undermining encryption, regardless of whether it is protecting data in transit or at rest, would take us down a dangerous and harmful path. Instead, law enforcement and the intelligence community should be working to alter their skills and tactics in a fast-evolving technological world so that they are not so dependent on information that will increasingly be protected by encryption.
Paul Merrell

United States v. United States Dist. Court for Eastern Dist. of Mich., 407 US 297 - Sup... - 0 views

scholar.google.com/scholar_case

surveillance state 4th Amendment constitutional law

shared by Paul Merrell on 27 Dec 13 - No Cached
  • But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development—even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.[13] We 313*313 look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U. S. 505 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any `technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails[14] necessitate the application of Fourth Amendment safeguards.
  • National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure 314*314 power," Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). History abundantly documents the tendency of Government—however benevolent and benign its motives —to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511 (3):
  • "As I read it—and this is my fear—we are saying that the President, on his motion, could declare— name your favorite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."[15] The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
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  • As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government 315*315 to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it. Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" turns, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U. S. 56, 66 (1950).[16] This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been
  • "a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should 316*316 be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." Coolidge v. New Hampshire, 403 U. S., at 481. See also United States v. Rabinowitz, supra, at 68 (Frankfurter, J., dissenting); Davis v. United States, 328 U. S. 582, 604 (1946) (Frankfurter, J., dissenting). Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. "It is not fit," said Mansfield, "that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer." Leach v. Three of the King's Messengers, 19 How. St. Tr. 1001, 1027 (1765).
  • Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed. These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive 317*317 Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.[17]
  • It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment,[18] not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963). The independent check upon executive discretion is not 318*318 satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review.[19] Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U. S. 89, 96 (1964).
  • But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
  • Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long 321*321 involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, §§ 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.
  • Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
  • As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U. S. 165 (1969), is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, "the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect." 394 U. S., at 185.[21]
Paul Merrell

NSA broke privacy rules thousands of times per year, audit finds - The Washington Post - 0 views

www.washingtonpost.com/...3-a07f-49ddc7417125_story.html

surveillance state NSA Snowden privacy-violations lies

shared by Paul Merrell on 16 Aug 13 - No Cached
  • The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents. Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.
  • The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance. In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence.
  • Read the documents NSA report on privacy violations Read the full report with key sections highlighted and annotated by the reporter.
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  • The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents. Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.
  • The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.
  • Gary Edwards on 16 Aug 13
     
    4 Part Article; this is page 1. Based on a Congressional Audit of the NSA, and, the NSA documents provided by uber patriot Edward Snowden.
Paul Merrell

NSA Data Will Soon Be Used By Domestic Law Enforcement - 0 views

www.mintpressnews.com/...214734

surveillance state NSA raw-data-sharing

shared by Paul Merrell on 24 Mar 16 - No Cached
  • If you’re reading this, then I’m willing to bet that you’ve been called many different names throughout your life. If I were to hazard a guess, I would say they were names like kook, paranoid, conspiracy theorist, alarmist, insane, or gullible. And after this week, you can go by a new name: Vindicated. I’m of course talking about recent revelations from the NSA. Long before Edward Snowden came along, it was no secret that the NSA was spying on everyone without good cause. Anyone who believed that fact was called a conspiracy theorist, but their fears were eventually validated. These same people also understood that the NSA’s surveillance powers would never be used exclusively against terrorists and hostile governments. The power they have is just too tempting for any government. If various government agencies weren’t using the NSA’s surveillance apparatus to solve domestic crimes, it was only a matter of time before it was used for just that.
  • And again, they called us conspiracy theorists for believing that. And again, we were right all long. A while back, we noted a report showing that the “sneak-and-peek” provision of the Patriot Act that was alleged to be used only in national security and terrorism investigations has overwhelmingly been used in narcotics cases. Now the New York Times reports that National Security Agency data will be shared with other intelligence agencies like the FBI without first applying any screens for privacy. The ACLU of Massachusetts blog Privacy SOS explains why this is important: What does this rule change mean for you? In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes.
  • Anybody who knows anything about how governments work, should not surprised. You can’t give them any kind of power, and expect them to use it responsibly. You can’t give them any stipulations. Eventually they’ll find a legal loophole to work around any limitations that have been placed on them. In other news, the Pentagon admitted this week that they’ve been deploying military drones over the United States for domestic surveillance purposes. Much like the NSA’s surveillance apparatus, we were assured that drones were for terrorists in faraway lands. Nothing so Orwellian would ever be used against ordinary American citizens at home. Yet here we are, with more to come.
  • Paul Merrell on 24 Mar 16
     
    The Privacy Act, 5 U.S.C. 552a, provides in relevant part: "(a)(4) the term "record" means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph[.] ... "(b) Conditions of Disclosure.-No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be- ... "(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought[.]" So a separate written request for each "portion" of any individual record that describes the "law enforcement activity for which the record is sought[.]" That doesn't sound like the contemplated unfettered access to bulk raw data. And it gets even better, with a right to sue for any violation, attorney fees and expenses, and a statutory minimum of $1,000 damages per violation just for winning the case.  
Paul Merrell

Britain has passed the 'most extreme surveillance law ever passed in a democracy' | ZDNet - 0 views

www.zdnet.com/...-new-spying-powers-becomes-law

surveillance state GCHQ UK snoopers'-charter legislation

shared by Paul Merrell on 20 Nov 16 - No Cached
  • It's 2016 going on 1984. The UK has just passed a massive expansion in surveillance powers, which critics have called "terrifying" and "dangerous".
  • The new law, dubbed the "snoopers' charter", was introduced by then-home secretary Theresa May in 2012, and took two attempts to get passed into law following breakdowns in the previous coalition government. Four years and a general election later -- May is now prime minister -- the bill was finalized and passed on Wednesday by both parliamentary houses. But civil liberties groups have long criticized the bill, with some arguing that the law will let the UK government "document everything we do online". It's no wonder, because it basically does. The law will force internet providers to record every internet customer's top-level web history in real-time for up to a year, which can be accessed by numerous government departments; force companies to decrypt data on demand -- though the government has never been that clear on exactly how it forces foreign firms to do that that; and even disclose any new security features in products before they launch.
  • Not only that, the law also gives the intelligence agencies the power to hack into computers and devices of citizens (known as equipment interference), although some protected professions -- such as journalists and medical staff -- are layered with marginally better protections. In other words, it's the "most extreme surveillance law ever passed in a democracy," according to Jim Killock, director of the Open Rights Group. The bill was opposed by representatives of the United Nations, all major UK and many leading global privacy and rights groups, and a host of Silicon Valley tech companies alike. Even the parliamentary committee tasked with scrutinizing the bill called some of its provisions "vague".
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  • And that doesn't even account for the three-quarters of people who think privacy, which this law almost entirely erodes, is a human right. There are some safeguards, however, such as a "double lock" system so that the secretary of state and an independent judicial commissioner must agree on a decision to carry out search warrants (though one member of the House of Lords disputed that claim). A new investigatory powers commissioner will also oversee the use of the powers. Despite the uproar, the government's opposition failed to scrutinize any significant amendments and abstained from the final vote. Killock said recently that the opposition Labour party spent its time "simply failing to hold the government to account". But the government has downplayed much of the controversy surrounding the bill. The government has consistently argued that the bill isn't drastically new, but instead reworks the old and outdated Regulation of Investigatory Powers Act (RIPA). This was brought into law in 2000, to "legitimize" new powers that were conducted or ruled on in secret, like collecting data in bulk and hacking into networks, which was revealed during the Edward Snowden affair. Much of those activities were only possible thanks to litigation by one advocacy group, Privacy International, which helped push these secret practices into the public domain while forcing the government to scramble to explain why these practices were legal. The law will be ratified by royal assent in the coming weeks.
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

CISA Cybersecurity Bill Advances Despite Privacy Concerns | WIRED - 0 views

www.wired.com/...nces-despite-privacy-critiques

surveillance state NSA cybersecurity legislation CISA privacy-loophole

shared by Paul Merrell on 13 Mar 15 - No Cached
  • For months, privacy advocates have been pointing to flaws in CISA, the new reincarnation of the cybersecurity bill known as CISPA that Congress has been kicking around since 2013. But today that zombie bill lurched one step closer to becoming law. The Senate Intelligence Committee passed the Cybersecurity Information Sharing Act, or CISA, by a vote of 14 to one Thursday afternoon. The bill, like the failed Cybersecurity Information Sharing and Protection Act that proceeded it, is designed to encourage the sharing of data between private companies and the government to prevent and respond to cybersecurity threats. But privacy critics have protested that CISA would create a legal framework for companies to more closely monitor internet users and share that data with government agencies.
  • After Thursday’s vote, Senator Ron Wyden—the only member of the Senate’s intelligence committee to vote against the bill—repeated those privacy concerns in a public statement. “If information-sharing legislation does not include adequate privacy protections then that’s not a cybersecurity bill—it’s a surveillance bill by another name,” he wrote. “It makes sense to encourage private firms to share information about cybersecurity threats. But this information sharing is only acceptable if there are strong protections for the privacy rights of law-abiding American citizens.”
  • Looking at the most recently revealed public version of CISA, privacy advocates have pointed out that it would allow sharing of personal data that goes beyond cybersecurity threats. It also allows the sharing of private sector data with the government that could prevent “terrorism” or an “imminent threat of death or serious bodily harm.” That language, Open Technology Institute privacy counsel Robyn Greene has argued, means CISA might “facilitate investigations into garden-variety violent crimes that have nothing to do with cyber threats.” “If that weren’t worrisome enough, the bill would also let law enforcement and other government agencies use information it receives to investigate, without a requirement for imminence or any connection to computer crime, even more crimes like carjacking, robbery, possession or use of firearms, ID fraud, and espionage,” Greene wrote in February. “While some of these are terrible crimes, and law enforcement should take reasonable steps to investigate them, they should not do so with information that was shared under the guise of enhancing cybersecurity.”
Paul Merrell

Spying by N.S.A. Ally Entangled U.S. Law Firm - NYTimes.com - 0 views

www.nytimes.com/...nsnared-american-law-firm.html

surveillance state NSA ASD NSA-targets law-firms

shared by Paul Merrell on 21 Feb 14 - No Cached
  • The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers. A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance. Related Coverage Text: Document Describes Eavesdropping on American Law FirmFEB. 15, 2014 The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.
  • The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues. On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.” The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.
  • Most attorney-client conversations do not get special protections under American law from N.S.A. eavesdropping. Amid growing concerns about surveillance and hacking, the American Bar Association in 2012 revised its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.Last year, the Supreme Court, in a 5-to-4 decision, rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as “speculative.”The N.S.A. is prohibited from targeting Americans, including businesses, law firms and other organizations based in the United States, for surveillance without warrants, and intelligence officials have repeatedly said the N.S.A. does not use the spy services of its partners in the so-called Five Eyes alliance — Australia, Britain, Canada and New Zealand — to skirt the law.
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  • Still, the N.S.A. can intercept the communications of Americans if they are in contact with a foreign intelligence target abroad, such as Indonesian officials. The N.S.A. is then required to follow so-called minimization rules to protect their privacy, such as deleting the identity of Americans or information that is not deemed necessary to understand or assess the foreign intelligence, before sharing it with other agencies. An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information. “Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.
  • The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes. Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. He helped create the bar association’s ethics code revisions that require lawyers to try to avoid being overheard by eavesdroppers. “You run out of options very quickly to communicate with someone overseas,” he said. “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.” 
  • In justifying the agency’s sweeping powers, the Obama administration often emphasizes the N.S.A.’s role in fighting terrorism and cyberattacks, but disclosures in recent months from the documents leaked by Mr. Snowden show the agency routinely spies on trade negotiations, communications of economic officials in other countries and even foreign corporations.
  • Other documents obtained from Mr. Snowden reveal that the N.S.A. shares reports from its surveillance widely among civilian agencies. A 2004 N.S.A. document, for example, describes how the agency’s intelligence gathering was critical to the Agriculture Department in international trade negotiations. “The U.S.D.A. is involved in trade operations to protect and secure a large segment of the U.S. economy,” that document states. Top agency officials “often rely on SIGINT” — short for the signals intelligence that the N.S.A. eavesdropping collects — “to support their negotiations.”
  • Paul Merrell on 21 Feb 14
     
    Outrageous.
Paul Merrell

Vodafone reveals existence of secret wires that allow state surveillance | Business | T... - 0 views

www.theguardian.com/...es-allowing-state-surveillance

surveillance state non-U.S.-spy-agencies Vodafone

shared by Paul Merrell on 07 Jun 14 - No Cached
  • Vodafone, one of the world's largest mobile phone groups, has revealed the existence of secret wires that allow government agencies to listen to all conversations on its networks, saying they are widely used in some of the 29 countries in which it operates in Europe and beyond.The company has broken its silence on government surveillance in order to push back against the increasingly widespread use of phone and broadband networks to spy on citizens, and will publish its first Law Enforcement Disclosure Report on Friday. At 40,000 words, it is the most comprehensive survey yet of how governments monitor the conversations and whereabouts of their people.The company said wires had been connected directly to its network and those of other telecoms groups, allowing agencies to listen to or record live conversations and, in certain cases, track the whereabouts of a customer. Privacy campaigners said the revelations were a "nightmare scenario" that confirmed their worst fears on the extent of snooping.
  • Vodafone's group privacy officer, Stephen Deadman, said: "These pipes exist, the direct access model exists."We are making a call to end direct access as a means of government agencies obtaining people's communication data. Without an official warrant, there is no external visibility. If we receive a demand we can push back against the agency. The fact that a government has to issue a piece of paper is an important constraint on how powers are used."Vodafone is calling for all direct-access pipes to be disconnected, and for the laws that make them legal to be amended. It says governments should "discourage agencies and authorities from seeking direct access to an operator's communications infrastructure without a lawful mandate".
  • Peter Micek, policy counsel at the campaign group Access, said: "In a sector that has historically been quiet about how it facilitates government access to user data, Vodafone has for the first time shone a bright light on the challenges of a global telecom giant, giving users a greater understanding of the demands governments make of telcos. Vodafone's report also highlights how few governments issue any transparency reports, with little to no information about the number of wiretaps, cell site tower dumps, and other invasive surveillance practices."
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  • In America, Verizon and AT&T have published data, but only on their domestic operations. Deutsche Telekom in Germany and Telstra in Australia have also broken ground at home. Vodafone is the first to produce a global survey.
  • Snowden, the National Security Agency whistleblower, joined Google, Reddit, Mozilla and other tech firms and privacy groups on Thursday to call for a strengthening of privacy rights online in a "Reset the net" campaign.Twelve months after revelations about the scale of the US government's surveillance programs were first published in the Guardian and the Washington Post, Snowden said: "One year ago, we learned that the internet is under surveillance, and our activities are being monitored to create permanent records of our private lives – no matter how innocent or ordinary those lives might be. Today, we can begin the work of effectively shutting down the collection of our online communications, even if the US Congress fails to do the same."
  • Paul Merrell on 07 Jun 14
     
    The Vodafone disclosures will undoubtedly have a very large ripple effect. Note carefully that this is the first major telephone service in the world to break ranks with the others and come out swinging at secret government voyeur agencies. Will others follow. If you follow the links to the Vodafone report, you'll find a very handy big PDF providing an overview of the relevant laws in each of the customer nations. There's a cute Guardian table that shows the aggregate number of warrants for interception of content via Vodafone for each of those nations, broken down by content type. That table has white-on-black cells noting where disclosure of those types of surveillance statistics are prohibited by law. So it is far from a complete picture, but it's a heck of a good start.  But several of those customer nations are members of the E.U., where digital privacy rights are enshrined as human rights under an EU-wide treaty. So expect some heat to roll downhill on those nations from the European treaty organizations, particularly the European Court of Human Rights, staffed with civil libertarian judges, from which there is no appeal.     
Paul Merrell

Court Rules Feds Need Warrant to Access Drug Prescriptions Database | American Civil Li... - 0 views

www.aclu.org/...-feds-need-warrant-access-drug

surveillance state DEA prescriptions patient-records 4th Amendment warrant

shared by Paul Merrell on 14 Feb 14 - No Cached
  • In a significant win for the privacy rights of anyone who has ever gotten a drug prescription, a federal judge in Oregon ruled yesterday that the DEA needs a warrant to search confidential prescription records. Oregon, like 48 other states, has a Prescription Drug Monitoring Program (PDMP), which tracks patients’ prescriptions for medications used to treat a long list of sensitive medical conditions. Although Oregon law requires police to get a warrant from a judge before searching prescription records in the database, the DEA has been requesting records using administrative subpoenas, which do not involve judicial authorization or probable cause. After the State of Oregon sued the DEA over this practice, the ACLU and ACLU of Oregon joined the suit on behalf of four patients and a doctor in the state. Last month, we argued in court that the DEA is violating the Fourth Amendment by bypassing the Constitution’s warrant requirement when seeking private prescription records. Yesterday, the court agreed. The court’s ruling is the first time a judge has held that law enforcement must get a probable cause warrant to access confidential prescription records from a state database in a criminal investigation. The opinion is significant for several reasons.
  • First, the court soundly rejected the DEA’s extreme argument that people lose their Fourth Amendment privacy rights in their medical information when they engage in confidential discussions with their doctor and pharmacist about their illnesses and treatment decisions. The federal government had argued that the “third party doctrine” applied, comparing confidential prescription records to electricity consumption records, bank records, and other categories of information held by third-party companies, for which courts have said police don’t need a warrant. The judge batted this argument aside, explaining that prescription records are “more inherently personal or private than bank records, and are entitled to and treated with a heightened expectation of privacy.” As the court held: “Although there is not an absolute right to privacy in prescription information, as patients must expect that physicians, pharmacists, and other medical personnel can and must access their records, it is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records.” More importantly, this ruling fits into a series of recent opinions calling into question the continuing vitality of the third party doctrine in modern society. As Justice Sotomayor wrote in United States v. Jonestwo years ago, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” This sentiment was echoed by the federal judge who ruled last year that the NSA’s bulk telephone metadata program violates the Fourth Amendment. The Oregon case is another blow to the third party doctrine’s shaky foundation.
  • In addition, although yesterday’s ruling is only binding within Oregon, it will be persuasive precedent for courts evaluating law enforcement’s use of subpoenas to obtain private prescription records—and similar information—around the country. The case is a reminder to the DEA and other law enforcement agencies that they are not above the law, and that they must comply with the Fourth Amendment’s warrant requirement when seeking sensitive information in criminal investigations. Finally, the case should add momentum to a movement within state legislatures to amend PDMP statutes to require police to get a warrant for prescription records. Ten states currently require a warrant as a matter of state law (Rhode Island was the most recent state to add this requirement, last year). The Pennsylvania House has passed legislation creating a warrant requirement for that state’s PDMP, and is waiting for the state senate to act. The Florida legislature may update the privacy protections for its PDMP this year. Action by state legislatures will send a strong message to the DEA that it should be getting warrants everywhere, not just in Oregon.
  • Paul Merrell on 14 Feb 14
     
    A case to watch as it wends it way through the appellate process. A very big win for the ACLU, with major implications for federal intelligence gathering in general. 
Paul Merrell

US pushing local cops to stay mum on surveillance - Yahoo News - 0 views

news.yahoo.com/;_ylt=AwrBJR4e65lTwmEAb7zQtDMD

surveillance state location-data public-records-acts litigation stingrays

shared by Paul Merrell on 13 Jun 14 - No Cached
  • WASHINGTON (AP) -- The Obama administration has been quietly advising local police not to disclose details about surveillance technology they are using to sweep up basic cellphone data from entire neighborhoods, The Associated Press has learned. Citing security reasons, the U.S. has intervened in routine state public records cases and criminal trials regarding use of the technology. This has resulted in police departments withholding materials or heavily censoring documents in rare instances when they disclose any about the purchase and use of such powerful surveillance equipment. Federal involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures about classified federal surveillance programs.
  • One well-known type of this surveillance equipment is known as a Stingray, an innovative way for law enforcement to track cellphones used by suspects and gather evidence. The equipment tricks cellphones into identifying some of their owners' account information, like a unique subscriber number, and transmitting data to police as if it were a phone company's tower. That allows police to obtain cellphone information without having to ask for help from service providers, such as Verizon or AT&T, and can locate a phone without the user even making a call or sending a text message. But without more details about how the technology works and under what circumstances it's used, it's unclear whether the technology might violate a person's constitutional rights or whether it's a good investment of taxpayer dollars. Interviews, court records and public-records requests show the Obama administration is asking agencies to withhold common information about the equipment, such as how the technology is used and how to turn it on. That pushback has come in the form of FBI affidavits and consultation in local criminal cases.
  • "These extreme secrecy efforts are in relation to very controversial, local government surveillance practices using highly invasive technology," said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union, which has fought for the release of these types of records. "If public participation means anything, people should have the facts about what the government is doing to them." Harris Corp., a key manufacturer of this equipment, built a secrecy element into its authorization agreement with the Federal Communications Commission in 2011. That authorization has an unusual requirement: that local law enforcement "coordinate with the FBI the acquisition and use of the equipment." Companies like Harris need FCC authorization in order to sell wireless equipment that could interfere with radio frequencies. A spokesman from Harris Corp. said the company will not discuss its products for the Defense Department and law enforcement agencies, although public filings showed government sales of communications systems such as the Stingray accounted for nearly one-third of its $5 billion in revenue. "As a government contractor, our solutions are regulated and their use is restricted," spokesman Jim Burke said.
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  • Local police agencies have been denying access to records about this surveillance equipment under state public records laws. Agencies in San Diego, Chicago and Oakland County, Michigan, for instance, declined to tell the AP what devices they purchased, how much they cost and with whom they shared information. San Diego police released a heavily censored purchasing document. Oakland officials said police-secrecy exemptions and attorney-client privilege keep their hands tied. It was unclear whether the Obama administration interfered in the AP requests. "It's troubling to think the FBI can just trump the state's open records law," said Ginger McCall, director of the open government project at the Electronic Privacy Information Center. McCall suspects the surveillance would not pass constitutional muster. "The vast amount of information it sweeps in is totally irrelevant to the investigation," she said.
  • A court case challenging the public release of information from the Tucson Police Department includes an affidavit from an FBI special agent, Bradley Morrison, who said the disclosure would "result in the FBI's inability to protect the public from terrorism and other criminal activity because through public disclosures, this technology has been rendered essentially useless for future investigations." Morrison said revealing any information about the technology would violate a federal homeland security law about information-sharing and arms-control laws — legal arguments that that outside lawyers and transparency experts said are specious and don't comport with court cases on the U.S. Freedom of Information Act. The FBI did not answer questions about its role in states' open records proceedings.
  • But a former Justice Department official said the federal government should be making this argument in federal court, not a state level where different public records laws apply. "The federal government appears to be attempting to assert a federal interest in the information being sought, but it's going about it the wrong way," said Dan Metcalfe, the former director of the Justice Department's office of information and privacy. Currently Metcalfe is the executive director of American University's law school Collaboration on Government Secrecy project. A criminal case in Tallahassee cites the same homeland security laws in Morrison's affidavit, court records show, and prosecutors told the court they consulted with the FBI to keep portions of a transcript sealed. That transcript, released earlier this month, revealed that Stingrays "force" cellphones to register their location and identifying information with the police device and enables officers to track calls whenever the phone is on.
  • One law enforcement official familiar with the Tucson lawsuit, who spoke on condition of anonymity because the official was not authorized to speak about internal discussions, said federal lawyers told Tucson police they couldn't hand over a PowerPoint presentation made by local officers about how to operate the Stingray device. Federal officials forwarded Morrison's affidavit for use in the Tucson police department's reply to the lawsuit, rather than requesting the case be moved to federal court. In Sarasota, Florida, the U.S. Marshals Service confiscated local records on the use of the surveillance equipment, removing the documents from the reach of Florida's expansive open-records law after the ACLU asked under Florida law to see the documents. The ACLU has asked a judge to intervene. The Marshals Service said it deputized the officer as a federal agent and therefore the records weren't accessible under Florida law.
  • Paul Merrell on 13 Jun 14
     
    The Florida case is particularly interesting because Florida is within the jurisdiction of the U.S. Eleventh Circuit Court of Appeals, which has just ruled that law enforcement must obtain a search warrant from a court before using equipment to determine a cell phone's location.  
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