New York Times: Reign in the Lawless NSA

Numerous posts on this blog have looked at the unrestrained domestic spying that has gone on under the National Security Agency that has left no American's telephone or Internet usage free from scrutiny.   Sadly, until Edward Snowden released massive amounts of information most citizens foolishly thought they enjoyed at least some small amount of privacy.  A commission appointed by Barack Obama has released a report that calls for numerous reforms to reign in the lawless behavior of the NSA.  It is also important to remember that this lawless behavior began under the Bush/Cheney regime, one of the most lawless in history.  The New York Times endorses the commission findings and calls for action in a main page editorial  Here are editorial excerpts:

In the days after one of the biggest national security leaks in United States history revealed the existence of vast, largely unchecked government surveillance programs, President Obama said he would “welcome” a robust national debate over the appropriate balance between protecting national security and respecting individual privacy and civil liberties. 

he answer has now landed squarely on Mr. Obama’s desk, with the release late Wednesday afternoon of a remarkably thorough and well-reasoned report calling on the government to end its bulk phone-data collection program and to increase both the transparency and accountability of surveillance programs going forward. 

The recommendations demonstrate how far afield the National Security Agency has wandered in its zeal to vacuum up the phone and Internet data of virtually every American, not to mention world leaders and other non-American citizens.

They also show the lack of regard for the Constitution that has led those efforts, and the virtual absence of supervision and restraint by Mr. Obama and his predecessor, President George W. Bush. 

 

The most far-reaching recommendations are also the most common sense. For example, the report calls for legislation requiring the government to meet a higher standard before it can order a company to turn over private customer records.
It also calls for an end to the government’s mass storage of those records, recommending that they be kept by the companies themselves or a private third party in order to prevent government abuse. Otherwise, the report warns, “high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking.” 

Among its many other important recommendations, the report singles out the Foreign Intelligence Surveillance Court, whose judges hear arguments in secret from the government alone, with no opposition, and issue classified rulings on significant constitutional issues. The panel said Congress should establish an advocate to argue in those hearings for the privacy and civil liberties interests of the public. And the selection of the court’s judges, which now resides solely in the hands of the chief justice of the United States, John Roberts Jr., should be divided among all the justices of the Supreme Court.

Perhaps most damning of all, the report calls into doubt the central justification for the surveillance dragnet: preventing terrorism. Echoing the finding of a federal judge who ruled on Monday that the phone-data collection program was probably unconstitutional, the report said the data sweep “was not essential to preventing attacks.” 

Mr. Obama need not wait for Congress to act to implement the reforms he said he wants. He can quickly adopt his panel’s recommendation and end the ineffective and constitutionally dangerous dragnet surveillance. 

Report: NSA Can Access Everything On Your iPhone, Android, and BlackBerry

I have noted before that America now ranks with Putin's Russia and Communist China in terms of the level of surveillance - i.e., domestic spying - that its citizens are subjected to.  Indeed, as a new report makes clear, the only safe assumption is that one has no personal privacy whatsoever.  Adolph Hitler and the Nazi regime would have loved what America now does to its citizens via NSA surveillance.  A story at Talking Points Memo looks at a new report that indicates that the NSA can access EVERYTHING on your cell phone.  Here are excerpts:

The U.S. National Security Agency is able to crack protective measures on iPhones, BlackBerry and Android devices, giving it access to users’ data on all major smartphones, according to a report Sunday in German news weekly Der Spiegel.

The magazine cited internal documents from the NSA and its British counterpart GCHQ in which the agencies describe setting up dedicated teams for each type of phone as part of their effort to gather intelligence on potential threats such as terrorists.

The data obtained this way includes contacts, call lists, SMS traffic, notes and location information, Der Spiegel reported. The documents don’t indicate that the NSA is conducting mass surveillance of phone users but rather that these techniques are used to eavesdrop on specific individuals, the magazine said.

The article doesn’t explain how the magazine obtained the documents, which are described as “secret.” But one of its authors is Laura Poitras, an American filmmaker with close contacts to NSA leaker Edward Snowden who has published several articles about the NSA in Der Spiegel in recent weeks.

Snowden’s revelations have sparked a heated debate in Germany about the country’s cooperation with the United States in intelligence matters.

On Saturday, thousands of people in Berlin protested the NSA’s alleged mass surveillance of Internet users. Many held placards with slogans such as “Stop watching us.”

Do I trust the NSA and the U.S. government not to abuse these abilities?  Not at all.

New York Times to Work With The Guardian on NSA Spying Stories

It seems that with each passing day more information on the endless scope of the NSA's domestic spying and the NSA's violations of legal constraints unfold.  And sadly, Barack Obama can't seem to get ahead of the unfolding revelations and continues to come across as lame and belatedly trying to do damage control.  Now, as BuzzFeed reports, the New York Times is teaming up with The Guardian to do a series of stories that will likely drop some additional bomb shells on the full extent of the police state spying that has been utilized against American citizens.  Here are details from BuzzFeed:

The New York Times is in the Snowden game.   The paper — which NSA leaker Edward Snowden deliberately avoided over his fear that it would cooperate with the United States government — is now working with the Guardian on a series of stories based on documents that detail National Security Agency cooperation with its British counterpart, the Government Communications Headquarters, known as GCHQ.

“In a climate of intense pressure from the UK government, The Guardian decided to bring in a US partner to work on the GCHQ documents provided by Edward Snowden,” Guardian spokeswoman Jennifer Lindenauer said in an email. “We are continuing to work in partnership with the NYT and others to report these stories.”

The London-based newspaper has been under intense British government pressure this summer, its editor, Alan Rusbridger, revealed earlier this week.

The decision to publish the revelations concerning the British intelligence service jointly with the Times may give the Guardian leverage in its battle with the British government, which is trying to prevent the stories’ publication. It may also relate to the stronger protections for free speech and press freedom under the First Amendment to the U.S. Constitution; Britain has no such protections, and its Official Secrets Act is aimed at keeping government secrets secret. Sources at both papers declined to discuss the motives beyond the spokeswoman’s reference to the “climate” of pressure.

The Guardian’s Rusbridger has used the Times’s megaphone before, to spectacular effect: When the British paper’s coverage of the phone hacking scandal at News Corp. appeared to hit a dead end, a collaboration with the the Times revived it, and helped lead to criminal charges against top News Corp. executives.

Snowden said he did not go to the Times because the paper bowed to Bush Administration demands to delay a story on warrantless wiretapping in the interest of national security; he was afraid, he said, the paper would do the same with his revelations.

Now, Times reporter Scott Shane is at work on a series of stories expected to be published next month jointly with the Guardian, a source familiar with the plans said.

Now the Times or an agent for the paper, too, appears to have carried digital files from the United Kingdom across international lines into the United States. Discussions of how to partner on the documents were carried out in person between top Guardian editors and Times executive editor Jill Abramson, all of whom declined to comment on the movement of documents. But it appears likely that someone at one of the two papers physically carried a drive with Snowden’s GCHQ leaks from London to New York or Washington — exactly what Miranda was stopped at Heathrow for doing.

I suspect these stories will prove very embarrassing not only to the British government but also to  American politicians and bureaucrats.

NSA Gathered Tens of Thousands of Americans’ E-mails

With each passing day we seem to discover more details on just how extensive domestic spying on American citizens has become - and how national politicians from Barack Obama on down have been less than honest about just how badly the privacy of citizens has been violated.  Whether the extent of the abuses is due to a run away National Security Agency or our elected officials knowingly allowing the abuses to take place, average citizens ought to be seriously disturbed.   It is particularly disturbing that government officials seemingly were deliberate lying to the court which supposedly protects Americans from domestic spying abuses.  If one thinks that they have any privacy in America, they need to think again.  The Washington Post looks at the latest revelations on the gathering of citizens' e-mails.  Here are excerpts:

For several years, the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans as part of a now-revised collection method, according to a 2011 secret court opinion.

The redacted 85-page opinion, which was declassified by U.S. intelligence officials on Wednesday, states that, based on NSA estimates, the spy agency may have been collecting as many as 56,000 “wholly domestic” communications each year.

In a strongly worded opinion, the chief judge of the Foreign Intelligence Surveillance Court expressed consternation at what he saw as a pattern of misleading statements by the government and hinted that the NSA possibly violated a criminal law against spying on Americans. 

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” John D. Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011, opinion.

“The court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Bates wrote in a scathing footnote.

[T]he NSA collects more than 250 million Internet communications each year, the opinion said. The vast majority — 91 percent — are obtained from Internet providers such as Google, Yahoo and AOL through a program code-named PRISM.

“By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of [the law],” Bates wrote. “NSA’s knowing acquisition of tens of thousands of wholly domestic communications through its upstream collection is a cause of concern for the court.”

The newly released opinion also reflects Bates’s frustration with the court’s inability to independently verify the NSA’s assertions, a sentiment underscored in a recent statement made to The Post by the current chief judge, Reggie B. Walton.

Bates continued: “Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard. . . . The Court concluded that this requirement had been ‘so frequently and systematically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.’ ”

FISA Section 702, as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.” 

Ironically, my son who can be a bit of a computer geek had told me several years ago that all of this was happening.  I did not believe him at the time.  Obviously, now I do.

Is the NSA's Surveillance Unconstitutional?

As noted before, I do not like the growing police state tendencies in America as most recently revealed in the NSA's sweeping surveillance operations that despite claims to the contrary to pull American citizens into the web of communications being monitored and in some cases being turned over to other police and law enforcement agencies.  I am all for stopping terrorists, but when American citizens are subject to the same levels of surveillance as on finds in China, Russia and Iran, something seriously wrong has happened to freedom in this country.  A column in the Washington Post looks at why the NSA surveillance of Americans is likely unconstitutional.  Here are excerpts:

 

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.

 The intelligence community has a history of overreaching in the name of national security. In the mid-1970s, it came to light that, since the 1940s, the NSA had been collecting international telegraphic traffic from companies, in the process obtaining millions of Americans’ telegrams that were unrelated to foreign targets. From 1940 to 1973, the CIA and the FBI engaged in covert mail-opening programs that violated laws prohibiting the interception or opening of mail. The agencies also conducted warrantless “surreptitious entries,” breaking into targets’ offices and homes to photocopy or steal business records and personal documents. The Army Security Agency intercepted domestic radio communications. And the Army’s CONUS program placed more than 100,000 people under surveillance, including lawmakers and civil rights leaders.
 

Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA) to limit sweeping collection of intelligence and create rigorous oversight. But 35 years later, the NSA is using this law and its subsequent amendments as legal grounds to run even more invasive programs than those that gave rise to the statute.

 

We’ve learned that in April, the Foreign Intelligence Surveillance Court (FISC) ordered Verizon to provide information on calls made by each subscriber over a three-month period. Over the past seven years, similar orders have been served continuously on AT&T, Sprint and other telecommunications providers.

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.

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.
 

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.

 

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.

[T]he 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.

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.

Liberal or conservative, Americans who value freedom ought to be very concerned about what is happening in the name of national security.  I suspect these concerns are what motivate Edward Snowden to release the information that he did. 
 

 

The Backlash Against the NSA's Spying on Americans

Reactions to the news that the National Security Agency ("NSA") has been spying on millions of Americans are all across the board.  Some are cheering the agency's aggressiveness in "weeding out terrorists" and "stopping terrorist attacks."  Others in contrast are highly upset now that they know that literally nothing may be private in their lives.  The defense for the spying is that it uses "meta analysis" and that our personal e-mails are not being read and our phone calls are not being monitored.  But is this actually true?  Less than three months ago, government officials denied that they were doing what we now in fact know they were doing.  The questions thus become (i) who do we trust and (ii) what could happen if the wrong individuals misuse information.  I for one, do not have a high level of trust of government when it comes to this type of information.  Perhaps I's a product of my youth in the 1960's and early 1070's when the U.S. government routinely lied about Vietnam.  Here are highlights from a column in the Washington Post that looks at the issue:

Keep your distance: The director of national intelligence is having intestinal distress.
“For me, it is literally — not figuratively, literally — gut-wrenching to see this happen,” James Clapper told Andrea Mitchell over the weekend, referring to leaks about the government’s secret program to collect vast troves of phone and Internet data.

There might be a bit more sympathy for Clapper’s digestive difficulty if he hadn’t delivered a kick in the gut to the American public just three months ago.  Sen. Ron Wyden (D-Ore.) asked Clapper at a Senate hearing in March, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”  “No, sir,” Clapper testified.

“It does not?” Wyden pressed. “Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.”

We now know that Clapper was not telling the truth. The National Security Agency is quite wittingly collecting phone records of millions of Americans, and much more.

[Government] officials have only themselves to blame. It is precisely their effort to hide such a vast and consequential program from the American public that caused this pressure valve to burst. Instead of allowing a democratic debate about the programs in broad terms that would not have compromised national security, their attempts to keep the public in the dark have created a backlash in which the risks to national security can’t be controlled.

Edward Snowden, the leaker, did the honorable thing in revealing his identity; it would be more honorable if he would turn himself in and face the consequences for his law-breaking. But there is little honor in the way administration officials and lawmakers have avoided responsibility. Obama administration officials are blaming Snowden, while some lawmakers complain disingenuously that the administration kept them out of the loop.

All 535 members of Congress had authorization to learn all about the programs. Senators even received a written invitation in 2011 to view a classified report. Likewise, Rep. Peter King (R-N.Y.), a former chairman of the Homeland Security Committee, said Monday that members “could have gotten a briefing whenever they wanted to.” But apparently few bothered. Worse, lawmakers quashed efforts to allow even modest public disclosure of the broad contours of the program.  

“The pervasive secrecy on this topic created an information vacuum. If congressional oversight was not going to fill it in, it turned out leaks would. That’s not the optimal solution.”

Not optimal, but probably inevitable. Officials who denied the public a responsible debate on surveillance will now have a debate on Snowden’s terms — and there’s no use in bellyaching about it.