House Vote 412 – Rejects Limits on N.S.A. Data Collection

NY Times has the stats.  A deeply divided House defeated legislation Wednesday that would have blocked the National Security Agency from collecting vast amounts of phone records, handing the Obama administration a hard-fought victory in the first Congressional showdown over the N.S.A.’s surveillance activities since Edward J. Snowden’s security breaches last month.

Readers’ Comments

“Change always comes with new threats and new opportunities. Technology should be used to thwart terrorism just as there is a need for more checks and balances on how Internet data is used.”

JL, Bay Area, California

The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the  program led to some unusual coalitions.

Conservative Republicans leery of what they see as Obama administration abuses of power teamed up with liberal Democrats long opposed to intrusive intelligence programs. The Obama administration made common cause with the House Republican leadership to try to block it.

House members pressing to rein in the N.S.A. vowed afterward that the outrage unleashed by Mr. Snowden’s disclosures would eventually put a brake on the agency’s activities. Representative Jerrold Nadler, Democrat of New York and a longtime critic of post-Sept. 11 counterterrorism efforts, said lawmakers would keep coming back with legislation to curtail the dragnets for “metadata,” whether through phone records or Internet surveillance.

At the very least, the section of the Patriot Act in question will be allowed to expire in 2015, he said. “It’s going to end — now or later,” Mr. Nadler said. “The only question is when and on what terms.”

Representative Mike Rogers of Michigan, the chairman of the House Intelligence Committee, promised lawmakers that he would draft legislation this fall to add more privacy protections to government surveillance programs even as he begged the House to oppose blanket restrictions.

The amendment to the annual Defense Department spending bill, written by Representatives Justin Amash, a libertarian Republican from Western Michigan, and John Conyers Jr., a veteran liberal Democrat from Detroit, turned Democrat against Democrat and Republican against Republican.

It would have limited N.S.A. phone surveillance to specific targets of law enforcement investigations, not broad dragnets. It was only one of a series of proposals — including restricting funds for Syrian rebels and adding Congressional oversight to foreign aid to Egypt — intended to check President Obama’s foreign and intelligence policies.

But in the phone surveillance program, the House’s right and left wings appeared to find a unifying cause. Representative Raúl R. Labrador, Republican of Idaho, called it “the wing nut coalition” and Mr. Amash “the chief wing nut.”

Mr. Amash framed his push as a defense of the Fourth Amendment’s prohibition against unreasonable search and seizure, and he found a surprising ally, Representative F. James Sensenbrenner Jr., Republican of Wisconsin and one of the principal authors of the Patriot Act. Mr. Sensenbrenner said his handiwork was never meant to create a program that allows the government to demand the phone records of every American.

“The time has come to stop it,” Mr. Sensenbrenner said.

Opposing them were not only Mr. Obama and the House speaker, John A. Boehner of Ohio, but also the leaders of the nation’s defense and intelligence establishment.

On Tuesday, the director of the National Security Agency, Gen. Keith Alexander, spent hours providing classified briefings to lawmakers about the program, and the White House took the unusual step of issuing a statement urging lawmakers not to approve the measure. On Wednesday, James L. Jones, the retired Marine Corps general who was Mr. Obama’s national security adviser from 2009-10, added his name to an open letter in support of preserving the N.S.A. programs that more than half a dozen top national-security officials from the Bush administration had signed.

“Denying the N.S.A. such access to data will leave the nation at risk,” said the letter, which was circulated to undecided members.

Mr. Rogers took a personal swipe at Mr. Amash, a darling of social media, when he said the House was not in the business of racking up “likes” on Facebook. He said the calling log program was an important tool for protecting against terrorist attacks.

“This is not a game,” he fumed. “This is real. It will have real consequences.”

But many rank-and-file Republicans and Democrats appeared impervious to such overtures. Representative Jared Polis, Democrat of Colorado and a supporter of the amendment, said that if the Obama administration felt strongly about defending the program, Mr. Obama would have spoken out personally. Instead, the White House released a statement under the name of the press secretary, Jay Carney.

“The press secretary says hundreds of things every day,” Mr. Polis said.

The divisions in Congress seemed to reflect the ambivalence in the nation. In a CBS News poll released Wednesday, 67 percent of Americans said the government’s collection of phone records was a violation of privacy. At the same time, 52 percent called it a necessary tool to help find terrorists.

But the final tally in the House suggested the tide was shifting on the issue. In the weeks after the Snowden leaks, the united voices of Congressional leaders and administration officials in support of the N.S.A. programs seemed to squelch the outrage Mr. Snowden had hoped for. Anger seemed to be trained more on Mr. Snowden than on the programs he revealed.

As the news media and the government chronicled Mr. Snowden’s flight from law enforcement, a web of privacy activists, libertarian conservatives and liberal civil liberties proponents rallied support behind Congressional action. House members said they received hundreds of phone calls and e-mails before Wednesday’s vote, all in favor of curtailing the N.S.A.’s authority.

Ultimately, 94 House Republicans defied their leadership; 111 Democrats — a majority of the Democratic caucus — defied their president.

“This is only the beginning,” Mr. Conyers vowed after the vote. The fight will shift to the Senate, where two longtime Democratic critics of N.S.A. surveillance, Mark Udall of Colorado and Ron Wyden of Oregon, immediately took up the cause.

“National security is of paramount importance, yet the N.S.A.’s dragnet collection of Americans’ phone records violates innocent Americans’ privacy rights and should not continue as its exists today,” Mr. Udall said after the vote. “The U.S. House of Representatives’ bipartisan vote today proposal should be a wake-up call for the White House.”

How Microsoft handed the NSA access to encrypted messages

Microsoft has collaborated closely with US intelligence services to allow users’ communications to be intercepted, including helping the National Security Agency to circumvent the company’s own encryption, according to top-secret documents obtained by the Guardian.

The files provided by Edward Snowden illustrate the scale of co-operation between Silicon Valley and the intelligence agencies over the last three years. They also shed new light on the workings of the top-secret Prism program, which was disclosed by the Guardian and the Washington Post last month.

The documents show that:

• Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;

• The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;

• The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;

• Microsoft also worked with the FBI’s Data Intercept Unit to “understand” potential issues with a feature in Outlook.com that allows users to create email aliases;

• In July last year, nine months after Microsoft bought Skype, the NSA boasted that a new capability had tripled the amount of Skype video calls being collected through Prism;

• Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a “team sport”.

The latest NSA revelations further expose the tensions between Silicon Valley and the Obama administration. All the major tech firms are lobbying the government to allow them to disclose more fully the extent and nature of their co-operation with the NSA to meet their customers’ privacy concerns. Privately, tech executives are at pains to distance themselves from claims of collaboration and teamwork given by the NSA documents, and insist the process is driven by legal compulsion.

In a statement, Microsoft said: “When we upgrade or update products we aren’t absolved from the need to comply with existing or future lawful demands.” The company reiterated its argument that it provides customer data “only in response to government demands and we only ever comply with orders for requests about specific accounts or identifiers”.

In June, the Guardian revealed that the NSA claimed to have “direct access” through the Prism program to the systems of many major internet companies, including Microsoft, Skype, Apple, Google, Facebook and Yahoo.

Blanket orders from the secret surveillance court allow these communications to be collected without an individual warrant if the NSA operative has a 51% belief that the target is not a US citizen and is not on US soil at the time. Targeting US citizens does require an individual warrant, but the NSA is able to collect Americans’ communications without a warrant if the target is a foreign national located overseas.

Since Prism’s existence became public, Microsoft and the other companies listed on the NSA documents as providers have denied all knowledge of the program and insisted that the intelligence agencies do not have back doors into their systems.

Microsoft’s latest marketing campaign, launched in April, emphasizes its commitment to privacy with the slogan: “Your privacy is our priority.”

Similarly, Skype’s privacy policy states: “Skype is committed to respecting your privacy and the confidentiality of your personal data, traffic data and communications content.”

But internal NSA newsletters, marked top secret, suggest the co-operation between the intelligence community and the companies is deep and ongoing.

The latest documents come from the NSA’s Special Source Operations (SSO) division, described by Snowden as the “crown jewel” of the agency. It is responsible for all programs aimed at US communications systems through corporate partnerships such as Prism.

The files show that the NSA became concerned about the interception of encrypted chats on Microsoft’s Outlook.com portal from the moment the company began testing the service in July last year.

Within five months, the documents explain, Microsoft and the FBI had come up with a solution that allowed the NSA to circumvent encryption on Outlook.com chats

A newsletter entry dated 26 December 2012 states: “MS [Microsoft], working with the FBI, developed a surveillance capability to deal” with the issue. “These solutions were successfully tested and went live 12 Dec 2012.”

Two months later, in February this year, Microsoft officially launched the Outlook.com portal.

Another newsletter entry stated that NSA already had pre-encryption access to Outlook email. “For Prism collection against Hotmail, Live, and Outlook.com emails will be unaffected because Prism collects this data prior to encryption.”

Microsoft’s co-operation was not limited to Outlook.com. An entry dated 8 April 2013 describes how the company worked “for many months” with the FBI – which acts as the liaison between the intelligence agencies and Silicon Valley on Prism – to allow Prism access without separate authorization to its cloud storage service SkyDrive.

The document describes how this access “means that analysts will no longer have to make a special request to SSO for this – a process step that many analysts may not have known about”.

The NSA explained that “this new capability will result in a much more complete and timely collection response”. It continued: “This success is the result of the FBI working for many months with Microsoft to get this tasking and collection solution established.”

A separate entry identified another area for collaboration. “The FBI Data Intercept Technology Unit (DITU) team is working with Microsoft to understand an additional feature in Outlook.com which allows users to create email aliases, which may affect our tasking processes.”

The NSA has devoted substantial efforts in the last two years to work with Microsoft to ensure increased access to Skype, which has an estimated 663 million global users.

One document boasts that Prism monitoring of Skype video production has roughly tripled since a new capability was added on 14 July 2012. “The audio portions of these sessions have been processed correctly all along, but without the accompanying video. Now, analysts will have the complete ‘picture’,” it says.

Eight months before being bought by Microsoft, Skype joined the Prism program in February 2011.

According to the NSA documents, work had begun on smoothly integrating Skype into Prism in November 2010, but it was not until 4 February 2011 that the company was served with a directive to comply signed by the attorney general.

The NSA was able to start tasking Skype communications the following day, and collection began on 6 February. “Feedback indicated that a collected Skype call was very clear and the metadata looked complete,” the document stated, praising the co-operation between NSA teams and the FBI. “Collaborative teamwork was the key to the successful addition of another provider to the Prism system.”

ACLU technology expert Chris Soghoian said the revelations would surprise many Skype users. “In the past, Skype made affirmative promises to users about their inability to perform wiretaps,” he said. “It’s hard to square Microsoft’s secret collaboration with the NSA with its high-profile efforts to compete on privacy with Google.”

The information the NSA collects from Prism is routinely shared with both the FBI and CIA. A 3 August 2012 newsletter describes how the NSA has recently expanded sharing with the other two agencies.

The NSA, the entry reveals, has even automated the sharing of aspects of Prism, using software that “enables our partners to see which selectors [search terms] the National Security Agency has tasked to Prism”.

The document continues:

“The FBI and CIA then can request a copy of Prism collection of any selector…”

As a result, the author notes:

“these two activities underscore the point that Prism is a team sport!”

In its statement to the Guardian, Microsoft said:

We have clear principles which guide the response across our entire company to government demands for customer information for both law enforcement and national security issues. First, we take our commitments to our customers and to compliance with applicable law very seriously, so we provide customer data only in response to legal processes.

Second, our compliance team examines all demands very closely, and we reject them if we believe they aren’t valid. Third, we only ever comply with orders about specific accounts or identifiers, and we would not respond to the kind of blanket orders discussed in the press over the past few weeks, as the volumes documented in our most recent disclosure clearly illustrate.

Finally when we upgrade or update products legal obligations may in some circumstances require that we maintain the ability to provide information in response to a law enforcement or national security request. There are aspects of this debate that we wish we were able to discuss more freely. That’s why we’ve argued for additional transparency that would help everyone understand and debate these important issues.

In a joint statement, Shawn Turner, spokesman for the director of National Intelligence, and Judith Emmel, spokeswoman for the NSA, said:

The articles describe court-ordered surveillance – and a US company’s efforts to comply with these legally mandated requirements. The US operates its programs under a strict oversight regime, with careful monitoring by the courts, Congress and the Director of National Intelligence. Not all countries have equivalent oversight requirements to protect civil liberties and privacy.

They added: “In practice, US companies put energy, focus and commitment into consistently protecting the privacy of their customers around the world, while meeting their obligations under the laws of the US and other countries in which they operate.”

1,856 to Zero: Secret Spy Court Authorizes 100% of US Government Requests

In court where civilians have no representative, government’s “national security” claims win again and again

– Lauren McCauley

A secret federal court last year did not deny a single request to search or electronically spy on people within the United States “for foreign intelligence purposes,” according to a Justice Department report this week.

spy The report (pdf), which was released Tuesday to Senate majority leader Harry Reid (D-Nev.), states that during 2012, the Foreign Intelligence Surveillance Court (the “FISC”) approved every single one of the 1,856 applications made by the government for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.

This past year saw 5 percent more applications than 2011, though no requests were denied in either. Besides the numbers provided, no other information regarding the court and the court’s decisions are made public.

As Wired’s David Kravets explains:

The secret court, which came to life in the wake of the Watergate scandal under the President Richard M. Nixon administration, now gets the bulk of its authority under the FISA Amendments Act, which Congress reauthorized for another five years days before it would have expired last year.

The act allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States.

Previous to its 2012 reauthorization, Senator Ron Wyden (D-Ore.) said during a debate on amending the FISA Act, “The public has absolutely no idea what the court is actually saying. What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted.”

Putting the FISC in context, Kevin Gosztola at FireDogLake writes, “America has a court that reviews surveillance requests in secret and makes rulings in secret that are kept secret.”

He goes on to cite a 2008 Harvard Law Review, which critiqued the unique arrangement of the secret court system, to explain why the court’s 100 percent acceptance rate may be unsurprising:

One of the most striking elements of the FISA system is the total absence of adversariality.

[t]he judge is forced not only to act as an arm of the prosecution in weighing the prosecution’s arguments about whether disclosure would or would not compromise national security, but also to act as a defense lawyer in determining whether the information is useful to the defendant.” Similarly, in reviewing a FISA application, the FISC must attempt the difficult, if not impossible, task of simultaneously occupying the roles of advocate and neutral arbiter — all without the authority or ability to investigate facts or the time to conduct legal research. The judge lacks, a skeptical advocate to vet the government’s legal arguments, which is of crucial significance when the government is always able to claim the weight of national security expertise for its position. It is questionable whether courts can play this role effectively, and, more importantly, whether they should. [emphasis added]

“Though depicted as some kind of check on Executive Branch behavior,” Glenn Greenwald writes, the entire process “is virtually designed to do the opposite: ensure the Government’s surveillance desires are unimpeded.”

He adds that the lack of oversight is significant because of recent calls to create a ‘drone court’ under the same model, providing a similar process through which the president can target for execution people who have been charged with no crime.

He continues:

But like the Fisa court, such a “drone court” would be far worse than merely harmless. Just imagine how creepy and tyrannical it is to codify a system where federal judges – in total secrecy and with only government lawyers present – issue execution warrants that allow the president to kill someone who has never been charged with a crime. It’s true that the president is already doing this, and is doing it without any external oversight. But a fake, illusory judicial process lends a perceived legitimacy to his execution powers that is not warranted by the reality of this process.

The Justice Department report also noted that the government issued 15,229 National Security Letters last year. The letters, issued by the FBI compelling “internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers,” were declared unconstitutional in March. However, the decision was stayed 90 days pending the White House’s expected appeal.

Drones are taking to the skies in the U.S.

Federal authorities step up efforts to license surveillance aircraft for law enforcement and other uses, amid growing privacy concerns.

WASHINGTON — While a national debate has erupted over the Obama administration’s lethal drone strikes overseas, federal authorities have stepped up efforts to license surveillance drones for law enforcement and other uses in U.S. airspace, spurring growing concern about violations of privacy.

The Federal Aviation Administration said Friday it had issued 1,428 permits to domestic drone operators since 2007, far more than were previously known. Some 327 permits are still listed as active.

Operators include police, universities, state transportation departments and at least seven federal agencies. The remotely controlled aircraft vary widely, from devices as small as model airplanes to large unarmed Predators.

The FAA, which has a September 2015 deadline from Congress to open the nation’s airspace to drone traffic, has estimated 10,000 drones could be aloft five years later. The FAA this week solicited proposals to create six sites across the country to test drones, a crucial step before widespread government and commercial use is approved.

Local and state law enforcement agencies are expected to be among the largest customers.

Earlier this month, TV footage showed a midsized drone circling over the bunker in southeast Alabama where a 65-year-old gunman held a 5-year-old boy hostage. After a tense standoff, an FBI team stormed the bunker, rescued the boy and shot his captor. Authorities refused to say who was operating the AeroVironment drone, which has a 9-foot wingspan.

In Colorado, the Mesa County Sheriff’s Office has used a fixed-wing drone to search for lost hikers in the mountains, and a helicopter drone to help crews battling fires. Flying manned planes or helicopters would cost at least $600 an hour, explained Ben Miller, who heads the program.

“We fly [drones] for less than $25 an hour,” Miller said. “It’s just a new way to put a camera up that’s affordable.”

Big-city police departments, including Los Angeles, have tested drones but are holding back on buying them until the FAA issues clear guidelines about operating in congested airspace, among other issues.

“You’ve got to take baby steps with this,” said Michael Downing, the LAPD deputy chief for counter-terrorism and special operations.

Los Angeles Police Department officials went to Simi Valley in December, he said, to watch a demonstration of a helicopter-like device that measured about 18 inches on each side and was powered by four propellers. It could fly about 90 minutes on its battery.

Downing said the LAPD was “pursuing the idea of purchasing” drones, but wouldn’t do so unless the FAA granted permission to fly them, and until the department could draw up policies on how to keep within privacy laws.

If the LAPD bought drones, Downing said, it initially would use them at major public events such as the Oscars or large protests. In time, drones could be flown to track fleeing suspects and assist in investigations. Tiny drones could even be used to fly inside buildings to shoot video if a suspect has barricaded himself within.

drone_attack_Obama_090123_mnIn theory, drones can offer unblinking eye-in-the-sky coverage. They can carry high-resolution video cameras, infrared sensors, license plate readers, listening devices and other high-tech gear. Companies have marketed drones disguised as sea gulls and other birds to mask their use.

That’s the problem, according to civil liberties groups. The technology is evolving faster than the law. Congress and courts haven’t determined whether drone surveillance would violate privacy laws more than manned planes or helicopters, or whether drone operators may be held liable for criminal trespassing, stalking or harassment.

“Americans have the right to know if and how the government is using drones to spy on them,” said Catherine Crump, a lawyer for the American Civil Liberties Union, which has called for updating laws to protect privacy.

A backlash has already started.

In Congress, Reps. Ted Poe (R-Texas) and Zoe Lofgren (D-San Jose) introduced privacy legislation Thursday that would require police to get a warrant or a court order before operating a drone to collect information on individuals.

“We need to protect against obtrusive search and surveillance by government and civilian use,” Poe said in a telephone interview. A similar bill failed last year.

Legislatures in 15 states are considering proposals to limit drone use. The City Council in Charlottesville, Va., passed a resolution on Feb. 4 barring local police from using drones — which they don’t yet have — to collect evidence in criminal cases.

In Seattle, Mayor Mike McGinn ordered police to return two Draganflyer X6 helicopter drones earlier this month after privacy advocates and others protested. The police said they had hoped to use them for search-and-rescue operations.

Federal agencies fly drones to assist in disasters, check flood damage, do crop surveys and more. U.S. Customs and Border Protection flies the largest fleet, 10 unarmed Predators, along the northern and southern borders to help track smugglers and illegal immigrants.

In 2004 and 2005, the U.S. Marshals Service tested two small drones in remote areas to help them track fugitives, according to law enforcement officials and documents released to the ACLU under the Freedom of Information Act. The Marshals Service abandoned the program after both drones crashed.

Except in rare cases, the military is barred from using drones in U.S. airspace to conduct surveillance or pursue individuals. No state or federal agency has proposed arming domestic drones with weapons, but the prospect has raised alarms in Congress and elsewhere.

In response to a question during an online Google chat Thursday, President Obama said drones had never been used to kill “an American citizen on American soil.”

“The rules outside of the United States are going to be different than the rules inside the United States, in part because our capacity, for example, to capture terrorists in the United States are very different than in the foothills or mountains of Afghanistan or Pakistan,” Obama said.

No drone was sent up to help find suspected killer Christopher Dorner after his truck was found burning near Big Bear Lake on Feb. 7, said Al Daniel, an officer in the aviation division of the San Bernardino County Sheriff’s Department. But Customs and Border Protection transmitted secure video from a Pilatus PC-12 plane to police commanders on the ground.

Despite a massive manhunt, Dorner vanished and authorities speculated he had escaped to Mexico. Five days later, however, he was found in a snowbound cabin near his truck and died after a shootout and fire.

The long delay, and the embarrassing fact that Dorner was hiding close by the police command post, sparked sharp criticism of police tactics and abilities.

Steve Whitmore, a spokesman for the Los Angeles County Sheriff’s Department, said an aerial drone might have helped find Dorner more quickly.

“The search would have been much wider and quicker because you’d have an unmanned aircraft looking,” he said. “You can cover more ground.”

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Most Amerikkkans Think the Gov’t Threatens Their Rights and Freedoms

Politico reports:

Fifty-three percent of Americans believe the government is a threat, and 43 percent do not, according to a Pew Research Center poll. Three-in-ten Americans believe government constitutes a major threat. In a poll conducted October 2003, only 45 percent saw government as a threat to their freedoms. Fifty-four percent do not.

I’m not necessarily one to take public opinion as sacred (majorities of Americans support all kinds of horrible things), but it’s hard to blame the 53% of Americans who think the government is a threat to their liberties. The sectors of the economy in which the government is most involved are also the most dysfunctional (e.g., healthcare, banking, etc.). We live in an age where there is a bipartisan consensus that the government can secretly spy on Americans communications without a warrant from a traditional court; political activists are infiltrated with government agents; the President can wage secret wars with robots and can even kill US citizens without a shred of due process; American citizens may be subject to indefinite detention on the say-so of the Executive branch alone; and so on.

Granted, 70% of those who think the government jeopardizes liberties are Republicans, so many respondents are thinking about Obama taking away their gun rights and their Christianity. But 45% are not gun owners and 55% of independents are in the camp that believe the government is a threat to their liberties. And with the level of encroachment into people’s lives and liberties these days, it shouldn’t be surprising.

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