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Federal Chief Information Officers (CIO) Council Wins Rosemary Award - 0 views

www2.gwu.edu/...20150318 Hillary Auction 2016 email-scandal State-Dept. gov't.-CIOs
shared by Paul Merrell on 19 Mar 15 - No Cached
  • Hillary Clinton E-Mail Controversy Illuminates Government-Wide Failure National Security Archive Lawsuit Established E-Mails as Records in 1993 CIO Council Repeats as Rosemary "Winner" for Doubling Down On "Lifetime Failure" Only White House Saves Its E-Mail Electronically, Agencies No Deadline Until 2016
  • The Federal Chief Information Officers (CIO) Council has won the infamous Rosemary Award for worst open government performance of 2014, according to the citation published today by the National Security Archive at www.nsarchive.org. The National Security Archive had hoped that awarding the 2010 Rosemary Award to the Federal Chief Information Officers Council for never addressing the government's "lifetime failure" of saving its e-mail electronically would serve as a government-wide wakeup call that saving e-mails was a priority. Fallout from the Hillary Clinton e-mail debacle shows, however, that rather than "waking up," the top officials have opted to hit the "snooze" button. The Archive established the not-so-coveted Rosemary Award in 2005, named after President Nixon's secretary, Rose Mary Woods, who testified she had erased 18-and-a-half minutes of a crucial Watergate tape — stretching, as she showed photographers, to answer the phone with her foot still on the transcription pedal. Bestowed annually to highlight the lowlights of government secrecy, the Rosemary Award has recognized a rogue's gallery of open government scofflaws, including the CIA, the Treasury Department, the Air Force, the FBI, the Justice Department, and Director of National Intelligence James Clapper.
  • Chief Information Officer of the United States Tony Scott was appointed to lead the Federal CIO Council on February 5, 2015, and his brief tenure has already seen more references in the news media to the importance of maintaining electronic government records, including e-mail, and the requirements of the Federal Records Act, than the past five years. Hopefully Mr. Scott, along with Office of Management & Budget Deputy Director for Management Ms. Beth Cobert will embrace the challenge of their Council being named a repeat Rosemary Award winner and use it as a baton to spur change rather than a cross to bear.
  • ...9 more annotations...
  • Many on the Federal CIO Council could use some motivation, including the beleaguered State Department CIO, Steven Taylor. In office since April 3, 2013, Mr. Taylor is in charge of the Department's information resources and IT initiatives and services. He "is directly responsible for the Information Resource Management (IRM) Bureau's budget of $750 million, and oversees State's total IT/ knowledge management budget of approximately one billion dollars." Prior to his current position, Taylor served as Acting CIO from August 1, 2012, as the Department's Deputy Chief Information Officer (DCIO) and Chief Technology Officer of Operations from June 2011, and was the Program Director for the State Messaging and Archival Retrieval Toolset (SMART). While Hillary Clinton repeatedly claimed that because she sent her official e-mail to "government officials on their State or other .gov accounts ... the emails were immediately captured and preserved," a recent State Department Office of Inspector General report contradicts claims that DOS' e-mail archiving system, ironically named SMART, did so.
  • The report found that State Department "employees have not received adequate training or guidance on their responsibilities for using those systems to preserve 'record emails.'" In 2011, while Taylor was State's Chief Technology Officer of Operations, State Department employees only created 61,156 record e-mails out of more than a billion e-mails sent. In other words, roughly .006% of DOS e-mails were captured electronically. And in 2013, while Taylor was State's CIO, a paltry seven e-mails were preserved from the Office of the Secretary, compared to the 4,922 preserved by the Lagos Consulate in Nigeria. Even though the report notes that its assessments "do not apply to the system used by the Department's high-level principals, the Secretary, the Deputy Secretaries, the Under Secretaries, and their immediate staffs, which maintain separate systems," the State Department has not provided any estimation of the number of Clinton's e-mails that were preserved by recipients through the Department's anachronistic "print and file" system, or any other procedure.
  • The unfortunate silver lining of Hillary Clinton inappropriately appropriating public records as her own is that she likely preserved her records much more comprehensively than her State Department colleagues, most of whose e-mails have probably been lost under Taylor's IT leadership. 2008 reports by CREW, right, and the GAO, left, highlighted problems preserving e-mails. Click to enlarge. The bigger issue is that Federal IT gurus have known about this problem for years, and the State Department is not alone in not having done anything to fix it. A 2008 survey by Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org did not find a single federal agency policy that mandates an electronic record keeping system agency-wide. Congressional testimony in 2008 by the Government Accountability Office indicted the standard "print and file" approach by pointing out:
  • 2011- the Justice Department (for doing more than any other agency to eviscerate President Obama's Day One transparency pledge through pit-bull whistleblower prosecutions, recycled secrecy arguments in court cases, retrograde FOIA regulations, and mixed FOIA responsiveness) 2010 - the Federal Chief Information Officers' Council (for "lifetime failure" to address the crisis in government e-mail preservation) 2009 - the FBI (for having a record-setting rate of "no records" responses to FOIA requests) 2008 - the Treasury Department (for shredding FOIA requests and delaying responses for decades) 2007 - the Air Force (for disappearing its FOIA requests and having "failed miserably" to meet its FOIA obligations, according to a federal court ruling) 2006 - the Central Intelligence Agency (for the biggest one-year drop-off in responsiveness to FOIA requests yet recorded).
  • Troublingly, current Office of Management and Budget guidance does not require federal agencies to manage "all email records in an electronic format" until December 31, 2016. The only part of the federal government that seems to be facing up to the e-mail preservation challenge with any kind of "best practice" is the White House, where the Obama administration installed on day one an e-mail archiving system that preserves and manages even the President's own Blackberry messages. The National Security Archive brought the original White House e-mail lawsuit against President Reagan in early 1989, and continued the litigation against Presidents George H.W. Bush and Bill Clinton, until court orders compelled the White House to install the "ARMS" system to archive e-mail. The Archive sued the George W. Bush administration in 2007 after discovering that the Bush White House had junked the Clinton system without replacing its systematic archiving functions. CREW subsequently joined this suit and with the Archive negotiated a settlement with the Obama administration that included the recovery of as many as 22 million e-mails that were previously missing or misfiled.
  • s a result of two decades of the Archive's White House e-mail litigation, several hundred thousand e-mails survive from the Reagan White House, nearly a half million from the George H.W. Bush White House, 32 million from the Clinton White House, and an estimated 220 million from the George W. Bush White House. Previous recipients of the Rosemary Award include: 2013 - Director of National Intelligence James Clapper (for his "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?") 2012 - the Justice Department (in a repeat performance, for failing to update FOIA regulations to comply with the law, undermining congressional intent, and hyping its open government statistics)
  • Rogue Band of Federal E-mail Users and Abusers Compounds Systemic Problems Former Secretary of State Hillary Clinton and other federal officials who skirt or even violate federal laws designed to preserve electronic federal records compound e-mail management problems. Top government officials who use personal e-mail for official business include: Clinton; former U.S. Ambassador to Kenya Scott Gration; chairman of the U.S. Chemical Safety Board Rafael Moure-Eraso; and former Secretary of State Colin Powell, who told ABC's This Week "I don't have any to turn over. I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files." Others who did not properly save electronic federal records include Environmental Protection Agency former administrator Lisa Jackson who used the pseudonym Richard Windsor to receive email; current EPA administrator Gina McCarthy, who improperly deleted thousands of text messages (which also are federal records) from her official agency cell phone; and former Internal Revenue Service official Lois Lerner, whose emails regarding Obama's political opponents "went missing or became destroyed."
  • "agencies recognize that devoting significant resources to creating paper records from electronic sources is not a viable long-term strategy;" yet GAO concluded even the "print and file" system was failing to capture historic records "for about half of the senior officials."
  • The destruction of other federal records was even more blatant. Jose Rodriguez, the former CIA official in charge of the agency's defunct torture program ordered the destruction of key videos documenting it in 2005, claiming that "the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain;" Admiral William McRaven, ordered the immediate destruction of any emails about Operation Neptune Spear, including any photos of the death of Osama bin Laden ("destroy them immediately"), telling subordinates that any photos should have already been turned over to the CIA — presumably so they could be placed in operational files out of reach of the FOIA. These rogues make it harder — if not impossible — for agencies to streamline their records management, and for FOIA requesters and others to obtain official records, especially those not exchanged with other government employees. The US National Archives currently trusts agencies to determine and preserve e-mails which agencies have "deemed appropriate for preservation" on their own, often by employing a "print and file" physical archiving process for digital records. Any future reforms to e-mail management must address the problems of outdated preservation technology, Federal Records Act violators, and the scary fact that only one per cent of government e-mail addresses are saved digitally by the National Archive's recently-initiated "Capstone" program.
  • Paul Merrell on 19 Mar 15
     
    Complete with photos, names, titles, of the 41 federal department and independent agency CIOs. The March 2015 Insopector General report linked from the article belies Hillary Clinton's claim that all emails she sent to State Department staff had been preserved by the Department.   
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US sets new record for denying federal files under Freedom of Information Act | US news... - 0 views

www.theguardian.com/...es-freedom-of-information-foia transparency FOIA U.S. records
shared by Paul Merrell on 20 Mar 15 - No Cached
  • The US has set a new record for denying and censoring federal files under the Freedom of Information Act, analysis by the Associated Press reveals. For the second consecutive year, the Obama administration more often than ever censored government files or outright denied access to them under the open-government legislation. The government took longer to turn over files when it provided any, said more regularly that it couldn’t find documents, and refused a record number of times to turn over files quickly that might be especially newsworthy.
  • It also acknowledged in nearly one in three cases that its initial decisions to withhold or censor records were improper under the law – but only when it was challenged. Its backlog of unanswered requests at year’s end grew remarkably by 55% to more than 200,000. The government’s new figures, published Tuesday, covered all requests to 100 federal agencies during fiscal 2014 under the Freedom of Information law, which is heralded globally as a model for transparent government. They showed that despite disappointments and failed promises by the White House to make meaningful improvements in the way it releases records, the law was more popular than ever. Citizens, journalists, businesses and others made a record 714,231 requests for information. The US spent a record $434m trying to keep up.
  • The government responded to 647,142 requests, a 4% decrease over the previous year. The government more than ever censored materials it turned over or fully denied access to them, in 250,581 cases or 39% of all requests. Sometimes, the government censored only a few words or an employee’s phone number, but other times it completely marked out nearly every paragraph on pages. On 215,584 other occasions, the government said it couldn’t find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper. The White House touted its success under its own analysis. It routinely excludes from its assessment instances when it couldn’t find records, a person refused to pay for copies or the request was determined to be improper under the law, and said under this calculation it released all or parts of records in 91% of requests – still a record low since Barack Obama took office using the White House’s own math.
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  • “We actually do have a lot to brag about,” White House spokesman Josh Earnest said. The government’s responsiveness under the open records law is an important measure of its transparency. Under the law, citizens and foreigners can compel the government to turn over copies of federal records for zero or little cost. Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. It cited such exceptions a record 554,969 times last year. Under the president’s instructions, the US should not withhold or censor government files merely because they might be embarrassing, but federal employees last year regularly misapplied the law. In emails that AP obtained from the National Archives and Records Administration about who pays for Michelle Obama’s expensive dresses, the agency blacked-out a sentence under part of the law intended to shield personal, private information, such as Social Security numbers, phone numbers or home addresses. But it failed to censor the same passage on a subsequent page.
  • The sentence: “We live in constant fear of upsetting the WH [White House].” In nearly one in three cases, when someone challenged under appeal the administration’s initial decision to censor or withhold files, the government reconsidered and acknowledged it was at least partly wrong. That was the highest reversal rate in at least five years. The AP’s chief executive, Gary Pruitt, said the news organization filed hundreds of requests for government files. Records the AP obtained revealed police efforts to restrict airspace to keep away news helicopters during violent street protests in Ferguson, Missouri. In another case, the records showed Veterans Affairs doctors concluding that a gunman who later killed 12 people had no mental health issues despite serious problems and encounters with police during the same period. They also showed the FBI pressuring local police agencies to keep details secret about a telephone surveillance device called Stingray.
  • “What we discovered reaffirmed what we have seen all too frequently in recent years,” Pruitt wrote in a column published this week. “The systems created to give citizens information about their government are badly broken and getting worse all the time.” The US released its new figures during Sunshine Week, when news organizations promote open government and freedom of information. The AP earlier this month sued the State Department under the law to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The government had failed to turn over the files under repeated requests, including one made five years ago and others pending since the summer of 2013.
  • The government said the average time it took to answer each records request ranged from one day to more than 2.5 years. More than half of federal agencies took longer to answer requests last year than the previous year. Journalists and others who need information quickly to report breaking news fared worse than ever. Under the law, the US is required to move urgent requests from journalists to the front of the line for a speedy answer if records will inform the public concerning an actual or alleged government activity. But the government now routinely denies such requests: Over six years, the number of requests granted speedy processing status fell from nearly half to fewer than one in eight. The CIA, at the center of so many headlines, has denied every such request over the last two years.
  • Paul Merrell on 20 Mar 15
     
    I did a fair bit of FOIA litigation during my years as a citizen activist and later as a lawyer. The response situation never was good and it's gotten far worse. I have an outstanding FOIA request to the Dept. of Health & Human Services for copies of particular documents submitted as public comments by other agencies including the CIA in a rulemaking proceeding. I submitted electronically over a year ago, got an authresponder telling me to expect a postcard acknowledging receipt within ten working days as required by FOIA. Didn't hear back from them, so resubmitted with copies of the original request and the autoresponse and got the same autoresponse. Still haven't got either of my postcards or the records, so it looks like I'm about to come out of retirement and file a FOIA lawsuit. It's an area where the squeakiest wheel gets the grease.  The bureaucracy does not like public records requests.   
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US v. Comprehensive Drug Testing, Inc., 621 F. 3d 1162 - Court of Appeals, 9th Circuit ... - 0 views

scholar.google.com/scholar_case surveillance-state 4th Amendment bulk-collection future-investigations
shared by Paul Merrell on 05 Dec 14 - No Cached
  • Concluding Thoughts
  • This case well illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy of innocent parties from a vigorous criminal investigation. At the time of Tamura, most individuals and enterprises kept records in their file cabinets or similar physical facilities. Today, the same kind of data is usually stored electronically, often far from the premises. Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems used—something that can often only be determined by closely analyzing the data in a controlled environment. Tamura involved a few dozen boxes and was considered a broad seizure; but even inexpensive electronic storage media today can store the equivalent of millions of pages of information. 1176*1176 Wrongdoers and their collaborators have obvious incentives to make data difficult to find, but parties involved in lawful activities may also encrypt or compress data for entirely legitimate reasons: protection of privacy, preservation of privileged communications, warding off industrial espionage or preventing general mischief such as identity theft. Law enforcement today thus has a far more difficult, exacting and sensitive task in pursuing evidence of criminal activities than even in the relatively recent past. The legitimate need to scoop up large quantities of data, and sift through it carefully for concealed or disguised pieces of evidence, is one we've often recognized. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir.2006).
  • This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 1167-68 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there. Once a file is examined, however, the government may claim (as it did in this case) that its contents are in plain view and, if incriminating, the government can keep it. Authorization to search some computer files therefore automatically becomes authorization to search all files in the same sub-directory, and all files in an enveloping directory, a neighboring hard drive, a nearby computer or nearby storage media. Where computers are not near each other, but are connected electronically, the original search might justify examining files in computers many miles away, on a theory that incriminating electronic data could have been shuttled and concealed there.
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  • The advent of fast, cheap networking has made it possible to store information at remote third-party locations, where it is intermingled with that of other users. For example, many people no longer keep their email primarily on their personal computer, and instead use a web-based email provider, which stores their messages along with billions of messages from and to millions of other people. Similar services exist for photographs, slide shows, computer code and many other types of data. As a result, people now have personal data that are stored with that of innumerable strangers. Seizure of, for example, Google's email servers to look for a few incriminating messages could jeopardize the privacy of millions. It's no answer to suggest, as did the majority of the three-judge panel, that people can avoid these hazards by not storing their data electronically. To begin with, the choice about how information is stored is often made by someone other than the individuals whose privacy would be invaded by the search. Most people have no idea whether their doctor, lawyer or accountant maintains records in paper or electronic format, whether they are stored on the premises or on a server farm in Rancho Cucamonga, whether they are commingled with those of many other professionals 1177*1177 or kept entirely separate. Here, for example, the Tracey Directory contained a huge number of drug testing records, not only of the ten players for whom the government had probable cause but hundreds of other professional baseball players, thirteen other sports organizations, three unrelated sporting competitions, and a non-sports business entity—thousands of files in all, reflecting the test results of an unknown number of people, most having no relationship to professional baseball except that they had the bad luck of having their test results stored on the same computer as the baseball players.
  • Second, there are very important benefits to storing data electronically. Being able to back up the data and avoid the loss by fire, flood or earthquake is one of them. Ease of access from remote locations while traveling is another. The ability to swiftly share the data among professionals, such as sending MRIs for examination by a cancer specialist half-way around the world, can mean the difference between death and a full recovery. Electronic storage and transmission of data is no longer a peculiarity or a luxury of the very rich; it's a way of life. Government intrusions into large private databases thus have the potential to expose exceedingly sensitive information about countless individuals not implicated in any criminal activity, who might not even know that the information about them has been seized and thus can do nothing to protect their privacy. It is not surprising, then, that all three of the district judges below were severely troubled by the government's conduct in this case. Judge Mahan, for example, asked "what ever happened to the Fourth Amendment? Was it ... repealed somehow?" Judge Cooper referred to "the image of quickly and skillfully moving the cup so no one can find the pea." And Judge Illston regarded the government's tactics as "unreasonable" and found that they constituted "harassment." Judge Thomas, too, in his panel dissent, expressed frustration with the government's conduct and position, calling it a "breathtaking expansion of the `plain view' doctrine, which clearly has no application to intermingled private electronic data." Comprehensive Drug Testing, 513 F.3d at 1117.
  • Everyone's interests are best served if there are clear rules to follow that strike a fair balance between the legitimate needs of law enforcement and the right of individuals and enterprises to the privacy that is at the heart of the Fourth Amendment. Tamura has provided a workable framework for almost three decades, and might well have sufficed in this case had its teachings been followed. We have updated Tamura to apply to the daunting realities of electronic searches. We recognize the reality that over-seizing is an inherent part of the electronic search process and proceed on the assumption that, when it comes to the seizure of electronic records, this will be far more common than in the days of paper records. This calls for greater vigilance on the part of judicial officers in striking the right balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures. The process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.
  • Paul Merrell on 05 Dec 14
     
    From a Ninth U.S. Circuit Court of Appeals en banc ruling in 2010. The Court's holding was that federal investigators had vastly overstepped the boundaries of multiple subpoenas and a search warrant --- and the Fourth Amendment --- by seizing records of a testing laboratory and reviewing them for information not described in the warrant or the subpoenas. At issue in this particular case was the government's use of a warrant that found probable cause to believe that the records contained evidence that steroids had been found in the urine of ten major league baseball players but searched the seized records for urine tests of other baseball players. The Court upheld the lower courts' rulings that the government was required to return all records other than those relevant to the ten players identified in the warrant. (The government had instead used the records of other player's urine tests to issue subpoenas for evidence relevant to those players potential use of steroids.) This decision cuts very heavily against the notion that the Fourth Amendment allows the bulk collection of private information about millions of Americans with or without a warrantor court order on the theory that some of the records *may* later become relevant to a lawful investigation.   Or rephrased, here is the en banc decision of the largest federal court of appeals (as many judges as most other federal appellate courts combined), in direct disagreement with the FISA Court orders allowing bulk collection of telephone records and bulk "incidental" collection of Americans' telephone conversations on the theory that the records *might* become relevant to national security investigations. Yet none of the FISA judges in any of the FISA opinions published thus far even cited, let alone distinguished, this Ninth Circuit en banc decision. Which says a lot of the quality of the legal research performed by the FISA Court judges. However, this precedent is front and center in briefs filed with the Ni
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Tell Congress: My Phone Calls are My Business. Reform the NSA. | EFF Action Center - 0 views

act.eff.org/...are-my-business-reform-the-nsa Patriot-Act sunset-section-215 EFF-email-campaign phone-records medical-records
shared by Paul Merrell on 31 Jan 15 - No Cached
  • The USA PATRIOT Act granted the government powerful new spying capabilities that have grown out of control—but the provision that the FBI and NSA have been using to collect the phone records of millions of innocent people expires on June 1. Tell Congress: it’s time to rethink out-of-control spying. A vote to reauthorize Section 215 is a vote against the Constitution.
  • On June 5, 2013, the Guardian published a secret court order showing that the NSA has interpreted Section 215 to mean that, with the help of the FBI, it can collect the private calling records of millions of innocent people. The government could even try to use Section 215 for bulk collection of financial records. The NSA’s defenders argue that invading our privacy is the only way to keep us safe. But the White House itself, along with the President’s Review Board has said that the government can accomplish its goals without bulk telephone records collection. And the Privacy and Civil Liberties Oversight Board said, “We have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the PATRIOT Act] made a concrete difference in the outcome of a counterterrorism investigation.” Since June of 2013, we’ve continued to learn more about how out of control the NSA is. But what has not happened since June is legislative reform of the NSA. There have been myriad bipartisan proposals in Congress—some authentic and some not—but lawmakers didn’t pass anything. We need comprehensive reform that addresses all the ways the NSA has overstepped its authority and provides the NSA with appropriate and constitutional tools to keep America safe. In the meantime, tell Congress to take a stand. A vote against reauthorization of Section 215 is a vote for the Constitution.
  • Paul Merrell on 31 Jan 15
     
    EFF has launched an email campagin to press members of Congress not to renew sectiion 215 of the Patriot Act when it expires on June 1, 2015.   Sectjon 215 authorizes FBI officials to "make an application for an order requiring the production of *any tangible things* (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." http://www.law.cornell.edu/uscode/text/50/1861 The section has been abused to obtain bulk collecdtion of all telephone records for the NSA's storage and processing.But the section goes farther and lists as specific examples of records that can be obtained under section 215's authority, "library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records."  Think of the NSA's voracious appetite for new "haystacks" it can store  and search in its gigantic new data center in Utah. Then ask yourself, "do I want the NSA to obtain all of my personal data, store it, and search it at will?" If your anser is "no," you might consider visiting this page to send your Congress critters an email urging them to vote against renewal of section 215 and to vote for other NSA reforms listed in the EFF sample email text. Please do not procrastinate. Do it now, before you forget. Every voice counts. 
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Feds May Have To Reveal FISA Phone Records In Murder Case | Techdirt - 0 views

www.techdirt.com/...hone-records-murder-case.shtml surveillance state NSA criminal discovery
shared by Paul Merrell on 14 Jun 13 - No Cached
  • There's been a lot of focus elsewhere concerning the FISA rulings that were leaked, showing that the government is scooping up the details of pretty much every phone call. However, a case concerning some guys who were trying to rob an armored truck may lead to some interesting revelations related to what the government collects. Daryl Davis, Hasam Williams, Terrance Brown, Toriano Johnson, and Joseph K. Simmons were charged with trying to rob a bunch of armored Brink's trucks, in which one of the robberies went wrong and a Brink's employee was shot and killed. As part of the case against the group, the DOJ obtained call records. However, during discovery, the government refused to hand over call records for July of 2010, claiming that when they sought them from the telco, the DOJ was told that those records had been purged. Terrance Brown's lawyer is now claiming that since it appears the NSA has sucked up all of this data for quite some time, it would appear that the government should, in fact, already have the phone records from July 2010, which he argues would show that he was nowhere near the robbery when it happened. Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.
  • The court agrees that, under the law, the government may need to produce those records. Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010. In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States. That order was actually issued Monday, only giving the government until yesterday to comply. At the time of posting, the government's reply has not yet shown up in PACER, though it may pop up soon. I'm guessing that they'll try to either get some sort of extension or explain why those records are somehow inaccessible -- but it could get interesting.
  • Paul Merrell on 14 Jun 13
     
    This is definitely one to watch. The Court's order is short but definitely enlightening. The defendant's trial is already under way, so the Court set a very short response time, and required the Feds to concurrently file the affidavit of the Attorney General if the Feds want to claim that disclosure would harm national security. She has also ordered that the Feds concurrently explain any belief that thre information was lawfully gathered, citing some specific portions of the FISA Act that are at the heart of the government's claim of right to compel telcos to disclose the information to the Feds.    Then the court decides whether the Feds must produce the records anyway. Tough position for the government because it would be extremely difficult to argue that the phone call metadata itself is classified, since they are by law "business records" of a private party, the telco.  And this sets the stage for a flood of habeas corpus petitions by persons already convicted seeking new trials with NSA surveillance records disclosed. Easiest way out for the Feds is to claim that the records do not exist, but someone will have to sign a statement under penalty of perjury file to that effect.  If the Court orders disclosure, the Feds have a right of immediate appeal. So this one could win up in the Supreme Court very quickly (days, not months). Reading the Court's order, the judge seems predisposed to order production of the records. So stay tuned to this channel. I'm reminded that about a week ago, an MSNBC reporter blogged that he didn't think that the PRISM story "has legs" that will keep it in the news very long. He was wrong. 
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PCLOB - 0 views

www.pclob.gov surveillance state NSA Privacy-Oversight-Board 215 unlawful
shared by Paul Merrell on 24 Jan 14 - No Cached
  • ​​​​​​​​​​​​PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
  • PCLOB ISSUES REPORTReport on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court
  • Paul Merrell on 24 Jan 14
     
    There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk - potentially encompassing all telephone calling records across the nation - they cannot be regarded as "relevant" to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) - an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.  In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders. Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The "reenactment doctrine," under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself. Moreover, the circumstances presented here differ in pivotal ways from any in which the reenact
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Tech firms and privacy groups press for curbs on NSA surveillance powers - The Washingt... - 0 views

www.washingtonpost.com/...4-ab77-9646eea6a4c7_story.html surveillance state Patriot-Act 215-sunset NSA-reform legislation
shared by Paul Merrell on 29 Mar 15 - No Cached
  • The nation’s top technology firms and a coalition of privacy groups are urging Congress to place curbs on government surveillance in the face of a fast-approaching deadline for legislative action. A set of key Patriot Act surveillance authorities expire June 1, but the effective date is May 21 — the last day before Congress breaks for a Memorial Day recess. In a letter to be sent Wednesday to the Obama administration and senior lawmakers, the coalition vowed to oppose any legislation that, among other things, does not ban the “bulk collection” of Americans’ phone records and other data.
  • We know that there are some in Congress who think that they can get away with reauthorizing the expiring provisions of the Patriot Act without any reforms at all,” said Kevin Bankston, policy director of New America Foundation’s Open Technology Institute, a privacy group that organized the effort. “This letter draws a line in the sand that makes clear that the privacy community and the Internet industry do not intend to let that happen without a fight.” At issue is the bulk collection of Americans’ data by intelligence agencies such as the National Security Agency. The NSA’s daily gathering of millions of records logging phone call times, lengths and other “metadata” stirred controversy when it was revealed in June 2013 by former NSA contractor Edward Snowden. The records are placed in a database that can, with a judge’s permission, be searched for links to foreign terrorists.They do not include the content of conversations.
  • That program, placed under federal surveillance court oversight in 2006, was authorized by the court in secret under Section 215 of the Patriot Act — one of the expiring provisions. The public outcry that ensued after the program was disclosed forced President Obama in January 2014 to call for an end to the NSA’s storage of the data. He also appealed to Congress to find a way to preserve the agency’s access to the data for counterterrorism information.
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  • Despite growing opposition in some quarters to ending the NSA’s program, a “clean” authorization — one that would enable its continuation without any changes — is unlikely, lawmakers from both parties say. Sen. Ron Wyden (D-Ore.), a leading opponent of the NSA’s program in its current format, said he would be “surprised if there are 60 votes” in the Senate for that. In the House, where there is bipartisan support for reining in surveillance, it’s a longer shot still. “It’s a toxic vote back in your district to reauthorize the Patriot Act, if you don’t get some reforms” with it, said Rep. Thomas Massie (R-Ky.). The House last fall passed the USA Freedom Act, which would have ended the NSA program, but the Senate failed to advance its own version.The House and Senate judiciary committees are working to come up with new bipartisan legislation to be introduced soon.
  • The tech firms and privacy groups’ demands are a baseline, they say. Besides ending bulk collection, they want companies to have the right to be more transparent in reporting on national security requests and greater declassification of opinions by the Foreign Intelligence Surveillance Court.
  • Some legal experts have pointed to a little-noticed clause in the Patriot Act that would appear to allow bulk collection to continue even if the authority is not renewed. Administration officials have conceded privately that a legal case probably could be made for that, but politically it would be a tough sell. On Tuesday, a White House spokesman indicated the administration would not seek to exploit that clause. “If Section 215 sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Edward Price said in a statement first reported by Reuters. Price added that allowing Section 215 to expire would result in the loss of a “critical national security tool” used in investigations that do not involve the bulk collection of data. “That is why we have underscored the imperative of Congressional action in the coming weeks, and we welcome the opportunity to work with lawmakers on such legislation,” he said.
  • Paul Merrell on 29 Mar 15
     
    I omitted some stuff about opposition to sunsetting the provisions. They  seem to forget, as does Obama, that the proponents of the FISA Court's expansive reading of section 215 have not yet come up with a single instance where 215-derived data caught a single terrorist or prevented a single act of terrorism. Which means that if that data is of some use, it ain't in fighting terrorism, the purpose of the section.  Patriot Act § 215 is codified as 50 USCS § 1861, https://www.law.cornell.edu/uscode/text/50/1861 That section authorizes the FBI to obtain an iorder from the FISA Court "requiring the production of *any tangible things* (including books, records, papers, documents, and other items)."  Specific examples (a non-exclusive list) include: the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person." The Court can order that the recipient of the order tell no one of its receipt of the order or its response to it.   In other words, this is about way more than your telephone metadata. Do you trust the NSA with your medical records? 
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NSA Data Will Soon Be Used By Domestic Law Enforcement - 0 views

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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.  
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FBI sharply increases use of Patriot Act provision to collect US citizens' records - Op... - 0 views

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shared by Paul Merrell on 16 Jun 13 - No Cached
  • The FBI has dramatically increased its use of a controversial provision of the Patriot Act to secretly obtain a vast store of business records of U.S. citizens under President Barack Obama, according to recent Justice Department reports to Congress. The bureau filed 212 requests for such data to a national security court last year – a 1,000-percent increase from the number of such requests four years earlier, the reports show. Follow @openchannelblog The FBI’s increased use of the Patriot Act’s “business records” provision — and the wide ranging scope of its requests -- is getting new scrutiny in light of last week’s disclosure that that the provision was used to obtain a top-secret national security order requiring telecommunications companies to turn over records of millions of telephone calls. Advertise | AdChoices Taken together, experts say, those revelations show the government has broadly interpreted the Patriot Act provision as enabling it to collect data not just on specific individuals, but on millions of Americans with no suspected terrorist connections. And it shows that the Foreign Intelligence Surveillance Court  accepted that broad interpretation of the law.
  • “That they were using this (provision) to do mass collection of data is definitely the biggest surprise,” said Robert Chesney, a top national security lawyer at the University of Texas Law School. “Most people who followed this closely were not aware they were doing this.  We’ve gone from producing records for a particular investigation to the production of all records for a massive pre-collection database. It’s incredibly sweeping.”  
  • But little-noticed statements by FBI Director Robert Mueller in recent years – as well as interviews with former senior law enforcement officials – hint at what Chesney calls a largely unnoticed “sea change” in the way the U.S. government collects data for terrorism and other national security investigations.
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  • The Patriot Act provision, known as Section 215, allows the FBI to require the production of business records and any other “tangible things” -- including “books, records, papers, documents and other items,” for an authorized terrorism or foreign intelligence investigation. The Patriot Act was a broad expansion of law enforcement powers enacted by Congress with overwhelming bipartisan support in the aftermath of the Sept. 11, 2001, terrorist attacks. In addition to Section 215, other provisions expanded the FBI’s power to issue so-called “national security letters,” requiring individuals and business to turn over a more limited set of records without any court order at all.  Advertise | AdChoices In contrast to standard grand jury subpoenas, material obtained under both Section 215 orders and national security letters must be turned over under so-called “gag orders” that forbid the business or institution that receives the order from notifying its customers or publicly referring to the matter.
  • Saying they wanted to put an end to “secret law,  eight U.S. senators — led by Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah — on Tuesday introduced a bill to require the Justice Department to declassify national security court decisions that have permitted the use of the “business records” provision for such purposes.
  • In 2010, the number of requests jumped to 205 (all again granted, with 176 modified.) In the latest report filed on April 30, the department reported there had been 212 such requests in 2012 – all approved by the court, but 200 of them modified.These sharp increase in the use of Section 215 has drawn little attention until now because the number of national security letters (NSLs) issued by the bureau has been so much greater -- 15,229 in 2012. But FBI Director Mueller, in little-noticed written responses to Congress two years ago, explained that the bureau was encountering resistance from telecommunications companies in turning over “electronic communication transaction” records in response to national security letters.“Beginning in late 2009, certain electronic communications service providers no longer honored NSLs to obtain” records because of what their lawyers cited as “an ambiguity” in the law. (What Mueller didn’t say was this came at a time when all the major telecommunications companies were still facing lawsuits over their cooperation with the government on surveillance programs.) As a result, Mueller said, the FBI had switched over to demanding the same data under Section 215. “This change accounts for a significant increase in the volume of business records requests,” Mueller wrote.
  • From the earliest days of the Patriot Act, Section 215 was among the most hotly disputed of its provisions. Critics charged the language – “tangible things” -- was so broad that it would even permit the FBI to obtain library and bookstore records to inspect what citizens were reading.Ashcroft confronted criticismLargely to tamp down those concerns, then-Attorney General John Ashcroft declassified information about the FBI’s use of the provision in September 2003, saying in a statement that “the number of times Section 215 has been used to date is zero.” Ashcroft added that he was releasing the information “to counter the troubling amount of public distortion and misinformation” about Section 215. But in the years since, the FBI’s use of Section 215 quietly exploded, with virtually no public notice or debate. In 2009, as part of an annual report to Congress, the Justice Department reported there had been 21 applications for business records to the Foreign Intelligence Surveillance Court (FISC) under Section 215 – all of which were granted, though nine were modified by the court. (The reports do not explain how or why the orders were modified.) 
  • The motion also asks the court to consider the constitutionality of the “gag order” written into Section 215.“There should be no room for secret law,” said Jameel Jaffer, the ACLU’s deputy legal director, adding that disclosure of the FISC rulings is essential if the debate Obama called for is to take place. “The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy.” 
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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. 
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DEA Global Surveillance Dragnet Exposed; Access to Data Likely Continues - The Intercept - 0 views

firstlook.org/...e-phone-records-crisscross-nsa surveillance state DEA EO-12333 litigation Human-Rights-Watch
shared by Paul Merrell on 09 May 15 - No Cached
  • Secret mass surveillance conducted by the Drug Enforcement Administration is falling under renewed scrutiny after fresh revelations about the broad scope of the agency’s electronic spying. On Tuesday, USA Today reported that for more than two decades, dating back to 1992, the DEA and the Justice Department “amassed logs of virtually all telephone calls from the USA to as many as 116 countries linked to drug trafficking.” Citing anonymous current and former officials “involved with the operation,” USA Today reported that Americans’ calls were logged between the United States and targeted countries and regions including Canada, Mexico, and Central and South America.
  • The DEA’s data dragnet was apparently shut down by Attorney General Eric Holder in September 2013. But on Wednesday, following USA Today’s report, Human Rights Watch launched a lawsuit against the DEA over its bulk collection of phone records and is seeking a retrospective declaration that the surveillance was unlawful. The latest revelations shine more light on the broad scope of the DEA’s involvement in mass surveillance programs, which can be traced back to a secret program named “Project Crisscross” in the early 1990s, as The Intercept previously revealed. Documents from National Security Agency whistleblower Edward Snowden, published by The Intercept in August last year, showed that the DEA was involved in collecting and sharing billions of phone records alongside agencies such as the NSA, the CIA and the FBI.
  • The vast program reported on by USA Today shares some of the same hallmarks of Project Crisscross: it began in the early 1990s, was ostensibly aimed at gathering intelligence about drug trafficking, and targeted countries worldwide, with focus on Central and South America. It is also reminiscent of the so-called Hemisphere Project, a DEA operation revealed in September 2013 by The New York Times, which dated as far back as 1987, and used subpoenas to collect vast amounts of international call records every day. There is crossover, too, with a DEA database called DICE, revealed by Reuters in August 2013, which reportedly contains phone and Internet communication records gathered by the DEA through subpoenas and search warrants nationwide. The precise relationship between Crisscross, DICE, Hemisphere and the surveillance program revealed by USA Today is unclear. Whether or not they were part of a single overarching operation, the phone records and other data collected by each were likely accessible to DEA agents through the same computer interfaces and search and analysis tools.
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  • A Justice Department spokesman told Reuters Wednesday that “all of the information has been deleted” and that the DEA was “no longer collecting bulk telephony metadata from U.S. service providers.” What the spokesman did not say is that the DEA has access to troves of phone records from multiple sources — and not all of them are obtained from U.S. service providers. As The Intercept’s reporting on Project Crisscross revealed, the DEA has had large-scale access to data covertly collected by the NSA, CIA and other agencies for years. According to NSA documents obtained by Snowden, the DEA can sift through billions of metadata records collected by other agencies about emails, phone calls, faxes, Internet chats and text messages using systems named ICREACH and CRISSCROSS/PROTON.
  • Notably, the DEA spying reported by USA Today encompassed phone records collected by the DEA using administrative subpoenas to obtain data from phone companies without the approval of a judge. The phone records collected by the agency as part of Project Hemisphere and the data stored on the DICE system were also collected through subpoenas and warrants. But ICREACH alone was designed to handle two to five billion new records every day — the majority of them not collected using any conventional search warrant or a subpoena. Instead, most of the data accessible to the DEA through ICREACH is vacuumed up by the NSA using Executive Order 12333, a controversial Reagan-era presidential directive that underpins several NSA bulk surveillance operations that monitor communications overseas. The 12333 surveillance takes place with no court oversight and has received minimal Congressional scrutiny because it is targeted at foreign, not domestic, communication networks.
  • This means that some of the DEA’s access to mass surveillance data — records collected in bulk through subpoenas or warrants — may have been shut down by Holder in 2013. But it is likely that the agency still has the ability to tap into other huge data repositories, and questions remain about how that access is being used.
  • Paul Merrell on 09 May 15
     
    How many ways do I love thee? ... Just a few minutes. I have to consult my haystacks.  'Twas on August 20, 1982 when Ronald Reagan formally declered "War on Drugs," thereby sweeping U.S. Drug Enforcement Administration records under the umbrella of "national security" secrets. Concurrently, a document was produced by the White House that mentioned that the forerunners of today's "fusion centers" would be created to begin trawling government databases for information to wage that war, including medical records held by the then-Veterans Administration. I''ve been keeping an eye on those rascals ever since. Believe me, we have merely scratched the surface of a very few of the Feds' "haystacks." There are very many to go before they're all rooted out into the sunlight.  
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Wyden, Udall Statement on the Disclosure of Bulk Email Records Collection Program | Pre... - 0 views

www.wyden.senate.gov/...ail-records-collection-program surveillance state NSA NSA-blowback efficacy email Udall Wyden
shared by Paul Merrell on 04 Jul 13 - No Cached
  • U. S. Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), both members of the Senate Intelligence Committee, released the following statement regarding the recent disclosure by intelligence officials that the NSA operated a bulk email records collection program under the authority of the Patriot Act until 2011.  This program is distinct from the internet-related collection carried out under section 702 of the FISA Amendments Act (which involves the PRISM computer system).   “We are quite familiar with the bulk email records collection program that operated under the USA Patriot Act and has now been confirmed by senior intelligence officials.  We were very concerned about this program’s impact on Americans’ civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness.  They were unable to do so, and the program was shut down that year.  
  • “As we have noted, the Patriot Act’s surveillance authorities are not limited to phone records.  In fact, section 215 of the Patriot Act can be used to collect any type of records whatsoever.  The fact that Patriot Act authorities were used for the bulk collection of email records as well as phone records underscores our concern that this authority could be used to collect other types of records in bulk as well, including information on credit card purchases, medical records, library records, firearm sales records, financial information and a range of other sensitive subjects.  These other types of collection could clearly have a significant impact on Americans’ constitutional rights.   “Intelligence officials have noted that the bulk email records program was discussed with both Congress and the Foreign Intelligence Surveillance Court.  In our judgment it is also important to note that intelligence agencies made statements to both Congress and the Court that significantly exaggerated this program’s effectiveness.  This experience demonstrates to us that intelligence agencies’ assessments of the usefulness of particular collection programs – even significant ones – are not always accurate.  This experience has also led us to be skeptical of claims about the value of the bulk phone records collection program in particular.  
  • “We believe that the broader lesson here is that even though intelligence officials may be well-intentioned, assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value by policymakers or oversight bodies any more than statements about the usefulness of other government programs should be taken at face value when they are made by other government officials.  It is up to Congress, the courts and the public to ask the tough questions and press even experienced intelligence officials to back their assertions up with actual evidence, rather than simply deferring to these officials’ conclusions without challenging them.   “We look forward to continuing the debate about the effectiveness of the ongoing Patriot Act phone records collection program in the days and weeks ahead.”
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First Unitarian Church of Los Angeles v. NSA | Electronic Frontier Foundation - 0 views

www.eff.org/...arian-church-los-angeles-v-nsa surveillance state NSA NSA-blowback litigation 1st Amendment EFF
shared by Paul Merrell on 13 Jan 14 - No Cached
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861. The facts have long been part of EFF’s Jewel v. NSA case. The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case. 
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  • Our goal is to highlight one of the most important ways that the government collection of telephone records is unconstitutional: it violates the First Amendment right of association. When the government gets access to the phone records of political and activist organizations and their members, it knows who is talking to whom, when, and for how long. This so-called “metadata,” especially when collected in bulk and aggregated, tracks the associations of these organizations. After all, if the government knows that you call the Unitarian Church or Calguns or People for the American Way or Students for Sensible Drug Policy regularly, it has a very good indication that you are a member and it certainly knows that you associate regularly. The law has long recognized that government access to associations can create a chilling effect—people are less likely to associate with organizations when they know the government is watching and when the government can track their associations. 
  • Twenty-two organizations including Unitarian church groups, gun ownership advocates, and a broad coalition of membership and political advocacy organizations filed suit against the National Security Agency for violating their First Amendment right of association by illegally collecting their call records. The coalition is represented by EFF. At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.
  • The First Amendment right of association is a well established doctrine that prevents the government “interfering with the right to peaceably assemble or prohibit the petition for a governmental redress of grievances.” The most famous case embracing it is a 1958 Supreme Court Case from the Civil Rights era called  NAACP v. Alabama. In that case the Supreme Court held that it would violate the First Amendment for the NAACP to have to turn over its membership lists in litigation. The right stems from the simple fact that the First Amendment protects the freedom to associate and express political views as a group. This constitutional protection is critical because, as the court noted “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]” NAACP v. Alabama, 357 U.S. at 460. As another court noted: the Constitution protects freedom of association to encourage the “advancing ideas and airing grievances” Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960).
  • The collection and analysis of telephone records give the government a broad window into our associations. The First Amendment protects against this because, as the Supreme Court has recognized, “it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.” NAACP v. Alabama, 357 U.S. at 462-63. See also Bates, 361 U.S. at 523; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).  Privacy in one’s associational ties is also closely linked to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. at 462. 
  • The Supreme Court has made clear that infringements on freedom of association may survive constitutional scrutiny only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see also NAACP v. Button, 371 U.S. at 341; Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2291 (2012)  Here, the wholesale collection of telephone records of millions of innocent Americans’ communications records, and thereby collection of their associations, is massively overbroad, regardless of the government’s interest. Thus, the NSA spying program fails under the basic First Amendment tests that have been in place for over fifty years.
  • Paul Merrell on 13 Jan 14
     
    This case is related to EFF's earlier pending case, Jewel v. NSA and has been assigned to Judge Whyte, the same judge who ruled earlier in Jewel that the State Secrets Privilege does not apply to NSA's call metadata "haystack." The plaintiffs are 22 different groups who would make strange bedfellows indeed, except in opposition to government surveillance and repression. 
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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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PATRIOT Act spying programs on death watch - Seung Min Kim and Kate Tummarello - POLITICO - 0 views

www.politico.com/...ct-spying-programs-117976.html surveillance state NSA 502-program legislation must-read
shared by Paul Merrell on 15 May 15 - No Cached
  • With only days left to act and Rand Paul threatening a filibuster, Senate Republicans remain deeply divided over the future of the PATRIOT Act and have no clear path to keep key government spying authorities from expiring at the end of the month. Crucial parts of the PATRIOT Act, including a provision authorizing the government’s controversial bulk collection of American phone records, first revealed by Edward Snowden, are due to lapse May 31. That means Congress has barely a week to figure out a fix before before lawmakers leave town for Memorial Day recess at the end of the next week. Story Continued Below The prospects of a deal look grim: Senate Majority Leader Mitch McConnell on Thursday night proposed just a two-month extension of expiring PATRIOT Act provisions to give the two sides more time to negotiate, but even that was immediately dismissed by critics of the program.
  • Paul Merrell on 15 May 15
     
    A must-read. The major danger is that the the Senate could pass the USA Freedom Act, which has already been passed by the House. Passage of that Act, despite its name, would be bad news for civil liberties.  Now is the time to let your Congress critters know that you want them to fight to the Patriot Act provisions expire on May 31, without any replacement legislation.  Keep in mind that Section 502 does not apply just to telephone metadata. It authorizes the FBI to gather without notice to their victims "any tangible thing", specifically including as examples "library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person." The breadth of the section is illustrated by telephone metadata not even being mentioned in the section.  NSA going after your medical records souand far fetched? Former NSA technical director William Binney says they're already doing it: "Binney alludes to even more extreme intelligence practices that are not yet public knowledge, including the collection of Americans' medical data, the collection and use of client-attorney conversations, and law enforcement agencies' "direct access," without oversight, to NSA databases." https://consortiumnews.com/2015/03/05/seeing-the-stasi-through-nsa-eyes/ So please, contact your Congress critters right now and tell them to sunset the Patriot Act NOW. This will be decided in the next few days so the sooner you contact them the better. 
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Obama to Call for End to N.S.A.'s Bulk Data Collection - NYTimes.com - 0 views

www.nytimes.com/...eek-nsa-curb-on-call-data.html surveillance state NSA call-metadata NSA-reform Obama legislation
shared by Paul Merrell on 26 Mar 14 - No Cached
  • The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order. In a speech in January, President Obama said he wanted to get the N.S.A. out of the business of collecting call records in bulk while preserving the program’s abilities. He acknowledged, however, that there was no easy way to do so, and had instructed Justice Department and intelligence officials to come up with a plan by March 28 — Friday — when the current court order authorizing the program expires.
  • As part of the proposal, the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle, senior administration officials said. But under the plan the administration has developed and now advocates, the officials said, it would later undergo major changes. The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said. They would also allow the government to swiftly seek related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion, even if those callers are customers of other companies.
  • The N.S.A. now retains the phone data for five years. But the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require — a burden that the companies had resisted shouldering and that was seen as a major obstacle to keeping the data in their hands. A senior administration official said that intelligence agencies had concluded that the operational impact of that change would be small because older data is less important.The N.S.A. uses the once-secret call records program — sometimes known as the 215 program, after Section 215 of the Patriot Act — to analyze links between callers in an effort to identify hidden terrorist associates, if they exist. It was part of the secret surveillance program that President George W. Bush unilaterally put in place after the terrorist attacks of Sept. 11, 2001, outside of any legal framework or court oversight.
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  • Marc Rotenberg, the executive director of the Electronic Privacy Information Center, called the administration’s proposal a “sensible outcome, given that the 215 program likely exceeded current legal authority and has not proved to be effective.” While he said that he would like to see more overhauls to other surveillance authorities, he said the proposal was “significant” and addressed the major concerns with the N.S.A.’s bulk records program. Jameel Jaffer of the American Civil Liberties Union said, “We have many questions about the details, but we agree with the administration that the N.S.A.’s bulk collection of call records should end.” He added, “As we’ve argued since the program was disclosed, the government can track suspected terrorists without placing millions of people under permanent surveillance.”
  • In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.
  • The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.The administration’s proposal would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk data collection of telephone data.The proposal would not, however, affect other forms of bulk collection under the same provision. The C.I.A., for example, has obtained orders for bulk collection of records about international money transfers handled by companies like Western Union.
  • The government has been unable to point to any thwarted terrorist attacks that would have been carried out if the program had not existed, but has argued that it is a useful tool.
  • Paul Merrell on 26 Mar 14
     
    "The N.S.A. uses the once-secret call records program ... to analyze links between callers in an effort to identify hidden terrorist associates, if they exist." Correction: "The N.S.A. *claims* to use the ..." 
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Most Agencies Falling Short on Mandate for Online Records - 0 views

www2.gwu.edu/...NSAEBB505 eFOIA FOIA audit National-Security-Archives agency-compliance
shared by Paul Merrell on 14 Mar 15 - No Cached
  • Nearly 20 years after Congress passed the Electronic Freedom of Information Act Amendments (E-FOIA), only 40 percent of agencies have followed the law's instruction for systematic posting of records released through FOIA in their electronic reading rooms, according to a new FOIA Audit released today by the National Security Archive at www.nsarchive.org to mark Sunshine Week. The Archive team audited all federal agencies with Chief FOIA Officers as well as agency components that handle more than 500 FOIA requests a year — 165 federal offices in all — and found only 67 with online libraries populated with significant numbers of released FOIA documents and regularly updated.
  • Congress called on agencies to embrace disclosure and the digital era nearly two decades ago, with the passage of the 1996 "E-FOIA" amendments. The law mandated that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and use new information technology to post online proactively records of significant public interest, including those already processed in response to FOIA requests and "likely to become the subject of subsequent requests." Congress believed then, and openness advocates know now, that this kind of proactive disclosure, publishing online the results of FOIA requests as well as agency records that might be requested in the future, is the only tenable solution to FOIA backlogs and delays. Thus the National Security Archive chose to focus on the e-reading rooms of agencies in its latest audit. Even though the majority of federal agencies have not yet embraced proactive disclosure of their FOIA releases, the Archive E-FOIA Audit did find that some real "E-Stars" exist within the federal government, serving as examples to lagging agencies that technology can be harnessed to create state-of-the art FOIA platforms. Unfortunately, our audit also found "E-Delinquents" whose abysmal web performance recalls the teletype era.
  • E-Delinquents include the Office of Science and Technology Policy at the White House, which, despite being mandated to advise the President on technology policy, does not embrace 21st century practices by posting any frequently requested records online. Another E-Delinquent, the Drug Enforcement Administration, insults its website's viewers by claiming that it "does not maintain records appropriate for FOIA Library at this time."
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  • "The presumption of openness requires the presumption of posting," said Archive director Tom Blanton. "For the new generation, if it's not online, it does not exist." The National Security Archive has conducted fourteen FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:
  • The federal government has made some progress moving into the digital era. The National Security Archive's last E-FOIA Audit in 2007, " File Not Found," reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. The new E-FOIA Audit finds the number of agencies that have checked those boxes is now much higher — 100 out of 165 — though many (66 in 165) have posted just the bare minimum, especially when posting FOIA responses. An additional 33 agencies even now do not post these types of records at all, clearly thwarting the law's intent.
  • The FOIAonline Members (Department of Commerce, Environmental Protection Agency, Federal Labor Relations Authority, Merit Systems Protection Board, National Archives and Records Administration, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Small Business Administration, U.S. Citizenship and Immigration Services, and Federal Communications Commission) won their "E-Star" by making past requests and releases searchable via FOIAonline. FOIAonline also allows users to submit their FOIA requests digitally.
  • THE E-DELINQUENTS: WORST OVERALL AGENCIES In alphabetical order
  • Key Findings
  • Excuses Agencies Give for Poor E-Performance
  • Justice Department guidance undermines the statute. Currently, the FOIA stipulates that documents "likely to become the subject of subsequent requests" must be posted by agencies somewhere in their electronic reading rooms. The Department of Justice's Office of Information Policy defines these records as "frequently requested records… or those which have been released three or more times to FOIA requesters." Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice. The National Security Archive believes the addition of this "three or more times" language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse ("not requested three times yet!") not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post "all records, regardless of form or format that have been released in response to a FOIA request."
  • Disabilities Compliance. Despite the E-FOIA Act, many government agencies do not embrace the idea of posting their FOIA responses online. The most common reason agencies give is that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being "508 compliant," and the 1998 Amendments to the Rehabilitation Act that require federal agencies "to make their electronic and information technology (EIT) accessible to people with disabilities." E-Star agencies, however, have proven that 508 compliance is no barrier when the agency has a will to post. All documents posted on FOIAonline are 508 compliant, as are the documents posted by the Department of Defense and the Department of State. In fact, every document created electronically by the US government after 1998 should already be 508 compliant. Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this Department of Homeland Security guide (essentially OCRing the text, and including information about where non-textual fields appear). Even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.
  • Privacy. Another commonly articulated concern about posting FOIA releases online is that doing so could inadvertently disclose private information from "first person" FOIA requests. This is a valid concern, and this subset of FOIA requests should not be posted online. (The Justice Department identified "first party" requester rights in 1989. Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself. An example of a "first person" FOIA would be a person's request for his own immigration file.) Cost and Waste of Resources. There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them. This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies. As such, the reason that a person requests information is immaterial as the agency processes the request; the "interest factor" of a document should also be immaterial when an agency is required to post it online. Some think that posting FOIA releases online is not cost effective. In fact, the opposite is true. It's not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it. That is a waste of resources. The released document should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track. The State Department earned its "E-Star" status demonstrating this very principle, and spent no new funds and did not hire contractors to build its Electronic Reading Room, instead it built a self-sustaining platform that will save the agency time and money going forward.
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NSA surveillance may be legal - but it's unconstitutional - The Washington Post - 0 views

www.washingtonpost.com/...2-a73e-826d299ff459_print.html surveillance state NSA constitutional law law
shared by Paul Merrell on 22 Jun 13 - No Cached
  • Laura K. Donohue is a professor at Georgetown University Law Center and director of Georgetown’s Center on National Security and the Law. The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.
  • Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.
  • Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.
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  • Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records. Following the 1995 Oklahoma City bombing, Congress allowed applications for obtaining records from certain kinds of businesses. In 2001, lawmakers further expanded FISA to give the government access to any business or personal records. Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.
  • The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records. Following the 1995 Oklahoma City bombing, Congress allowed applications for obtaining records from certain kinds of businesses. In 2001, lawmakers further expanded FISA to give the government access to any business or personal records. Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.This means that FISA can now be used to gather records concerning individuals who are neither the target of any investigation nor an agent of a foreign power. Entire databases — such as telephony metadata — can be obtained, as long as an authorized investigation exists.Congress didn’t pass Section 215 to allow for the wholesale collection of information. As Rep. F. James Sensenbrenner Jr. (R-Wis.), who helped draft the statute, wrote in the Guardian: “Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigation?”As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized.
  • There are exceptions to the warrant requirement. In 1979 the court held that the use of a pen register to record numbers dialed from someone’s home was not a search. The court suggested that people who disclose their communications to others assume the risk that law enforcement may obtain the information.More than three decades later, digitization and the explosion of social-network technology have changed the calculus. In the ordinary course of life, third parties obtain massive amounts of information about us that, when analyzed, have much deeper implications for our privacy than before.As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications.Americans reasonably expect that their movements, communications and decisions will not be recorded and analyzed by the government. A majority of the Supreme Court seems to agree. Last year, the court considered a case involving 28-day GPS surveillance. Justice Samuel Alito suggested that in most criminal investigations, long-term monitoring “impinges on expectations of privacy.” Justice Sonia Sotomayor recognized that following a person’s movements “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”The FISC is supposed to operate as a check. But it is a secret court, notorious for its low rate of denial. From 1979 to 2002, it did not reject a single application. Over the past five years, out of nearly 8,600 applications, only two have been denied.
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The frightening promise of self-tracking pills | The Verge - 0 views

www.theverge.com/...acking-privacy-quantified-self surveillance state pill-tracking wireless
shared by Paul Merrell on 13 Oct 15 - No Cached
  • Some morning in the future, you take a pill — maybe something for depression or cholesterol. You take it every morning. Buried inside the pill is a sand-sized grain, one millimeter square and a third of a millimeter thick, made from copper, magnesium, and silicon. When the pill reaches your stomach, your stomach acids form a circuit with the copper and magnesium, powering up a microchip. Soon, the entire contraption will dissolve, but in the five minutes before that happens, the chip taps out a steady rhythm of electrical pulses, barely audible over the body's background hum. The signal travels as far as a patch stuck to your skin near the navel, which verifies the signal, then transmits it wirelessly to your smartphone, which passes it along to your doctor. There's now a verifiable record that the pill reached your stomach.
  • This is the vision of Proteus, a new drug-device accepted for review by the Food and Drug Administration last month. The company says it's the first in a new generation of smart drugs, a new source of data for patients and doctors alike. But bioethicists worry that the same data could be used to control patients, infringing on the intensely personal right to refuse medication and giving insurers new power over patients’ lives. As the device moves closer to market, it raises a serious question: Is tracking medicine worth the risk?
  • But not everyone's convinced that the ability to track pills will be good news for patients. The right to refuse treatment is an important, fragile principle in health care. Many are worried that tracking whether a pill is being consumed will be the first step towards punishing patients that don't comply. While doctors can’t force a patient to take a pill, court orders frequently mandate treatments involving specific drug regimens.
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  • NYU bioethicist Arthur Caplan says he can imagine a judge using Proteus to enforce medication as part of a sentence: miss a pill, and your parole is revoked. "The temptation in the legal system to say, 'I can monitor you and make sure you're not a threat' is going to be huge," Caplan says. "Maybe that's good, maybe it's bad, but it's a different world than saying I consent to taking these pills." Those court orders are rare at the moment, since there’s no way to ensure a patient is taking medication outside of a controlled treatment facility — but as pill-tracking becomes easier, those measures could become much more common. That's particularly likely given the way Proteus is entering the market. The device's first partnership bundles it with Abilify, a powerful antipsychotic most commonly used to treat mood disorders, schizophrenia, and Tourette's. The most common effects are improved concentration and decreased hallucinations, but it comes with extreme side effects like increased suicide risk and a lower seizure threshold. It's most often prescribed in cases of severe mental illness, often in psychiatric institutions or as part of a court-mandated treatment program — exactly the scenarios bioethicists like Caplan are most worried about.
  • Patient's biggest protection are medical privacy laws like HIPAA, which prevent medical data from being shared with anyone outside the hospital system. That would stop your boss or your parents from using Proteus to make sure you haven't fallen behind on your anti-anxiety medication. But those laws won't keep data out of the hands of healthcare providers, and Caplan is concerned the pill could also be used to enforce compliance. Insurers might offer a discounted rate on tracked pills, then hit patients with a $100 co-pay for every treatment they miss. It's not as oppressive as a court order, but the end result would be similar.
  • Still, those concerns are unlikely to keep Proteus out of the hands of doctors. The upcoming FDA approval will focus largely on safety and efficacy, leaving the larger ethical challenges to be solved after the drug is released to doctors and patients at large. With the technology available, it will be up to the courts to decide when it’s legal and ethical to use it. As far as Proteus is concerned, the power of the technology outweighs the risks. "There are challenges with bringing digital into any sector," a company representative said. "The reason to embrace the challenge in health care is because the need is so great."
  • Paul Merrell on 13 Oct 15
     
    Let's not forget that because Congress recently decided to revive Patriot Act sect. 215, the FBI is authorized to gather medical records for foreign intelligence and anti-terrorism purposes and according to ex-NSA chief scientist William Binney, the NSA in fact collects medical records and makes them available to law enforcement agencies without a warrant or court order.  http://motherboard.vice.com/read/i-toured-stasi-hq-with-nsa-whistleblowers  One judge has found that statute unconstitutional and may rule in the next few days. A court of appeals has found that the statute did not authorize bulk collection of telephone metadata records. An Oregon federal judge ruled that the DEA cannot obtain prescription records (in part because they are medical records) without an individualized search warrant, specifically ruling against the bulk collection argument. Maybe someday someone in federal government will get a clue that medical records are not one of the "haystacks" the NSA is permitted to create.  Involuntary medical treatment is another giant legal hairball. See https://en.wikipedia.org/wiki/Involuntary_treatment   
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The Impact of NSA Domestic Spying - Business Insider - 0 views

www.businessinsider.com/-of-nsa-domestic-spying-2013-6 NSA Domestic-Spying
shared by Gary Edwards on 06 Jun 13 - No Cached
  • NSA has collected cell records from all major mobile networks.
  • Thanks to AT&T whistleblower Mark Klein and NSA whistleblowers William Binney and Thomas Drake, we know that the NSA has been perpetually amassing not only phone records but virtually all electronic records and communications.
  • As an AT&T engineer, Klein discovered that a special NSA network actively "vacuumed up Internet and phone-call data from ordinary Americans with the cooperation of AT&T," emphasizing that "much of the data sent through AT&T to the NSA was purely domestic."
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  • Binney — one of the best mathematicians and code breakers in NSA history — worked for the Defense Department's foreign signals intelligence agency for 32 years before resigning in late 2001 because he "could not stay after the NSA began purposefully violating the Constitution."
  • He's detailed how, ever since 9/11, the NSA has run a top-secret surveillance program that amasses electronic data — phone calls, emails, banking and travel records, social media, entire government databases — and analyzes the information "to be able to monitor what people are doing" and who they are doing it with.
  • Thanks to AT&T whistleblower Mark Klein and NSA whistleblowers William Binney and Thomas Drake, we know that the NSA has been perpetually amassing not only phone records but virtually all electronic records and communications.
  • Binney would know — he built the original software (i.e. ThinThread) that identified, in real time, networks of connections between individuals based on their electronic communications.
  • "I can pull your entire life together from all those domains and map it out and show your entire life over time," Binney told documentarian Laura Poitras while she was investigating the NSA's $2 billion data storage facility in Bluffdale, Utah. "This is something the KGB, the Stasi or the Gestapo would have loved to have had."
  • Binney — one of the best mathematicians and code breakers in NSA history — worked for the Defense Department's foreign signals intelligence agency for 32 years before resigning in late 2001 because he "could not stay after the NSA began purposefully violating the Constitution." He's detailed how, ever since 9/11, the NSA has run a top-secret surveillance program that amasses electronic data — phone calls, GPS information, emails, social media, banking and travel records, entire government databases — and analyzes the information "to be able to monitor what people are doing" and who they are doing it with.
  • Gary Edwards on 06 Jun 13
     
    Excellent coverage.  Follow the links, they are extraordinary. " Glenn Greenwald revealed that the National Security Agency (NSA) is using the so-called "business records" provision of the Patriot Act to secretly collect telephone records of millions of Americans. Although the revelation doesn't surprise privacy advocates, the fact that Greenwald obtained a top secret court order compelling Verizon to give the NSA information on all telephone calls in its systems is the first concrete piece of evidence exposing dragnet domestic surveillance. "
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