The National-Security State Lives

[mick silver]

Sen. Rand Paul accomplished something worthwhile when, almost single-handedly, he saw to it that Section 215 of the Patriot Act expired. For that he deserves our heartfelt thanks.
But where does the expiration now leave us opponents of indiscriminate government spying on innocent people (http://fff.org/explore-freedom/article/motives-aside-the-nsa-should-not-spy-on-us/)? Not in such a great place. Shortly after 215 disappeared, the Senate passed the House's watered-down USA Freedom Act, which perhaps puts some meaningful, though modest restrictions on the government's access to our communications data, but about which the civil-liberties community properly has decidedly mixed feelings (https://freedom.press/blog/2015/06/our-statement-congress-passing-usa-freedom-act-nsa-reform-bill). With or without the so-called Freedom Act, however, the government's ability to conduct mass surveillance, unrestrained by the "probable cause" standard in the Constitution, lives on. The NSA and kindred agencies have had many more arrows (http://news.antiwar.com/2015/06/03/fbi-illegally-kept-phone-surveillance-going-without-patriot-act/) in their quiver than Section 215. An appeals court had already ruled that what the government was doing – collecting everyone's "metadata" (http://www.nationalreview.com/article/419069/why-we-shouldnt-trust-nsa-our-metadata-charles-c-w-cooke) – exceeded what 215 appeared to permit. Yet the NSA proceeded anyway
As privacy watchdog Julian Sanchez writes (http://motherboard.vice.com/read/dont-just-let-the-sun-go-down-on-patriot-powers), "While 'Sunset the Patriot Act (http://www.thedailybell.com/definitions/params/id/1943/)' makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent – and includes an array of overlapping authorities that will limit the effect of an expiration."
Shane Harris, writing (http://www.thedailybeast.com/articles/2015/05/14/nsa-loves-the-nothing-burger-spying-reform-bill.html) at the Daily Beast, puts it this way: "The really big winner here is the NSA. Over at its headquarters in Fort Meade, Maryland, intelligence officials are high-fiving, because they know things could have turned out much worse." Harris quotes a "a former senior intelligence official" who said, "What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community."
Harris adds: "Here's the dirty little secret that many spooks are loath to utter publicly, but have been admitting in private for the past two years: The program, which was exposed in documents leaked by Edward Snowden in 2013, is more trouble than it's worth."
While Sanchez doesn't call the Freedom Act a "win" for the NSA, he told the Daily Beast, "I'd certainly agree it's not a loss for NSA in any meaningful way. Indeed, there are some respects in which a shift to the carrier-centric model [with telecoms not the government holding the metadata] is likely to give them greater flexibility by allowing them to query on data the FISC [Foreign Intelligence Surveillance Court] order doesn't permit them to collect."
Peter Baker and David Sanger of the New York Times write (http://www.nytimes.com/2015/05/02/us/politics/giving-in-a-little-on-national-security-agency-data-collection.html?_r=0) that "in addition to new restrictions on domestic data sweeps, the [Freedom Act] plan would require more transparency and introduce ostensibly independent voices into secret intelligence court proceedings." But then they quote a "recently departed senior intelligence official," who said, "This is hardly major change."
So where's the gain for the right of privacy?
Baker and Sanger add, "The legislation would still leave an expansive surveillance apparatus capable of tracking vast quantities of data. Some of the most sweeping programs disclosed by Mr. Snowden, particularly those focused on international communications, would remain unaffected. The N.S.A. could continue efforts to break private encryption systems, and information about Americans could still be swept up if originating overseas."
The more one reads about the "reforms," the more one doubts that anything will change very much. It's enough to make one think that the row in Congress was just a big distraction. But at least government's bulk collection of phone metadata as we know it will apparently end. As the Electronic Frontier Foundation puts it (https://www.eff.org/deeplinks/2015/04/new-usa-freedom-act-step-right-direction-more-must-be-done), "The text of USA Freedom Act is tightening the definition of specific selection term (https://www.emptywheel.net/2014/05/06/specific-selection-term-still-not-convinced/) in a way designed to ensure only specific individuals, accounts, and devices qualify as specific selection terms. So the bulk collection of everybody's phone records? As far as we can tell, this should end that." (Emphasis added.) As noted, the program was expensive and it didn't prevent terrorism anyway – needles are tough to find in haystacks – which may be why the NSA is not mourning the loss.
If the state is less able to access our bulk phone data today than it was last week, then that's a good thing. But let's not fool ourselves: the national-security state (http://www.theguardian.com/us-news/2015/jun/03/nsa-surveillance-fisa-court) lives.
This article (http://sheldonfreeassociation.blogspot.com/2015/05/let-clock-run-out-on-nsa.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+blogspot%2FILKif+%28Free+Asso ciation%29) contributed courtesy of Sheldon Richmon, who keeps the blog "Free Association (http://www.sheldonrichman.com/)" and is a senior fellow and chair of the trustees of the Center for a Stateless Society (http://www.c4ss.org/).
- See more at: http://www.thedailybell.com/editorials/36337/Sheldon-Richman-The-National-Security-State-Lives/#sthash.Vnl3kuLn.dpuf

[mick silver]

You need not suspect the motives of those responsible for NSA surveillance to detest what they are doing. In fact, we may have more to fear from spies acting out of patriotic zeal than those acting out of power lust or economic interest: Zealots are more likely to eschew restraints that might compromise their righteous cause.
For the sake of argument, we may assume that from President Obama on down, government officials sincerely believe that gathering Americans’ telephone and Internet data is vital to the people’s security. Does that make government spying okay?
No, it doesn’t.
“Government is not reason, it is not eloquence — it is force. Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.” Although often attributed to George Washington, that famous quotation was probably was not uttered by him (http://www.volokh.com/2010/04/14/government-is-not-reason-it-is-not-eloquence-it-is-force/). Nevertheless, its value lies in what it says, not in who said it.
At best, government represents a risk to the people it rules. Even under a tightly written constitution and popular vigilance — both of which are easier to imagine than to achieve — government officials will always have the incentive and opportunity to push the limits and loosen the constraints.
But if their purpose is to protect us, why worry?
It doesn’t take much imagination to answer to this question. A purported cure can be worse than the disease. Who would accept the placement of a surveillance camera in every home as a way of preventing crime? By the same token, gathering data on everyone without probable cause in order to locate possible terrorists should be abhorrent to people who prize their freedom and privacy.
Since we’re assuming pure motives, we’ll ignore the specter of deliberate abuse. In our hypothetical case, no one would use the information in a way not intended to promote the general welfare. Pure motives, however, do not rule out error. So the danger remains that innocent people could have their lives seriously disrupted — or worse — by a zealous agent of government who sees an ominous pattern in someone’s data where none in fact exists. Author Nassim Nicholas Taleb (http://en.wikipedia.org/wiki/Nassim_Nicholas_Taleb) points out that human beings are more likely to see order in randomness than vice versa. As a result, a blameless individual could have his life turned upside down by a bureaucrat who goes the extra mile to ensure that no terrorist act occurs on his watch. Think of the turmoil created for those falsely accused of the bombing at the Atlanta Olympic games and of sending anthrax letters after the 9/11 attacks.
The odds of such an error for any particular individual may be slight, but they are big enough if you put yourself into the picture.
However, that is not the only reason to reject even a well-intentioned surveillance state.
Julian Sanchez (http://mashable.com/2013/06/13/julian-sanchez-nsa/), who specializes in technology and civil liberties, points out that a person who has nothing to hide from government officials — if such a person actually exists — would still not have a good reason to tolerate NSA surveillance, because the general awareness that government routinely spies on us has an insidious effect on society:

Even when it isn’t abused … the very presence of that spy machine affects us and poisons us.… It’s slow and subtle, but surveillance societies inexorably train us for helplessness, anxiety and compliance. Maybe they’ll never look at your call logs, read your emails or listen in on your intimate conversations. You’ll just live with the knowledge that they always could — and if you ever had anything worth hiding, there would be nowhere left to hide it.
Is that the kind of society we want, one in which we assume a government official is looking over our shoulders?
Because government is force — “a dangerous servant and a fearful master” — it must be watched closely, even — especially — when it does something you like. But eternal vigilance is hard to achieve. People outside the system are busy with their lives, and politicians generally can’t be expected to play watchdog to other politicians. Therefore, at the least, we need institutional constraints and transparency: No secret warrants. No secret courts. No secret expansive interpretations of laws and constitutional prohibitions.
Categories

Civil Liberties & Privacy (http://fff.org/explore-freedom/articles/category/civil-liberties-amp-privacy/)



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[mick silver]

Despite the weekend expiry of several provisions of the Patriot Act, the FBI illegally kept its surveillance plane scheme (http://www.washingtontimes.com/news/2015/jun/2/fbi-keeping-tabs-cellphones-aircraft/) going unchecked, and without any attempts to get a judge’s approval for the program.
http://news.antiwar.com/wp-content/uploads/2011/09/fbi_building.jpgThe low-flying spy planes comb densely populated parts of the United States, pretending (http://news.antiwar.com/2014/12/31/senate-judiciary-presses-fbi-for-cellphone-spying-details/)to be cellphone towers in an effort to trick Americans’ cellphones into giving them private data by the thousands, and collecting that data en masse.
The program was in a serious legal grey area in the first place, resting on provisions allowing wholesale surveillance to try to root out “lone wolf” terrorists. Even when those provisions were off the books, however, the FBI kept the flights going, more illegally than ever.
The Senate had been looking into the matter before, complaining that wholesale targeting of Americans’ private data wasn’t okay just because the spy planes were in public airspace, and that effort will hopefully grow with the FBI thumbing its nose at any pretense of oversight.
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[keehah]

wikipedia.org/wiki/Wikimedia_Foundation_v._NSA (https://en.wikipedia.org/wiki/Wikimedia_Foundation_v._NSA)

Wikimedia Foundation, et al. v. National Security Agency, et al. is a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of the Wikimedia Foundation and several other organizations against the National Security Agency (NSA), the United States Department of Justice (DOJ), and other named individuals, alleging mass surveillance of Wikipedia users carried out by the NSA. The suit claims the surveillance system, which NSA calls "Upstream", breaches the First Amendment to the United States Constitution, which protects freedom of speech, and the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures.

The suit was filed in the United States District Court for the District of Maryland as the NSA is based in Fort Meade, Maryland. The suit was dismissed in October 2015 by Judge T. S. Ellis III; this decision was appealed four months later to the Fourth Circuit Court of Appeals by the Wikimedia Foundation. The Court of Appeals found that the dismissal was valid for all of the plaintiffs except the Foundation, whose allegations the court found "plausible" enough to have legal standing for the case to be remanded to the lower court.

The original plaintiffs besides the Wikimedia Foundation were the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, the PEN American Center, the Global Fund for Women, The Nation magazine, the Rutherford Institute, and the Washington Office on Latin America.

diff.wikimedia.org: U.S. Supreme Court Declines to Hear Wikimedia Foundation’s Challenge to NSA Mass Surveillance (https://diff.wikimedia.org/2023/02/21/u-s-supreme-court-declines-to-hear-wikimedia-foundations-challenge-to-nsa-mass-surveillance/)


On February 21st 2023, the Wikimedia Foundation circulated the below joint statement with the American Civil Liberties Union (ACLU), and the Knight First Amendment Institute at Columbia University. As a final development in our case, Wikimedia Foundation v. NSA (https://en.wikipedia.org/wiki/Wikimedia_Foundation_v._NSA), the United States Supreme Court denied our petition asking for a review of the National Security Agency’s (NSA) mass surveillance of internet communications and activities. This denial represents a big hit to both privacy and freedom of expression. While it marks the end of our suit against the NSA, it does not mark the end of the Foundation’s advocacy work to protect free knowledge worldwide. We plan to direct our efforts toward urging the United States Congress to make changes to Section 702 of the Foreign Intelligence Surveillance Act in order to protect individual privacy. Section 702 (https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act_of_1978_Amen dments_Act_of_2008#Section_702:_Non_U.S._persons) is the legislation that the NSA relies on to conduct Upstream surveillance, the very subject of our lawsuit. We hope to work together with Wikimedia communities to encourage Congress to take privacy into account when looking at reauthorization later this year.

Wikimedia Foundation, ACLU, and Knight Institute Call on Congress to Limit the NSA’s Surveillance of Internet Communications

WASHINGTON, February 21, 2023 — The U.S. Supreme Court today denied the Wikimedia Foundation’s petition (https://wikimediafoundation.org/news/2022/08/26/wikimedia-foundation-aclu-and-knight-institute-urge-u-s-supreme-court-to-hear-challenge/) for review of its legal challenge to the National Security Agency’s (NSA) “Upstream” surveillance program. Under this program, the NSA systematically searches the contents of internet traffic entering and leaving the United States, including Americans’ private emails, messages, and web communications. The Supreme Court’s denial leaves in place a divided ruling (https://wikimediafoundation.org/news/2021/09/15/federal-appeals-court-dismisses-aclu-challenge-to-nsa-internet-surveillance/) from the U.S. Court of Appeals for the Fourth Circuit, which dismissed Wikimedia’s case based on the government’s assertion of the “state secrets privilege.”

“The Supreme Court’s refusal to grant our petition strikes a blow against an individual’s right to privacy and freedom of expression — two cornerstones of our society and the building blocks of Wikipedia,” said James Buatti, legal director at the Wikimedia Foundation. “We will continue to champion everyone’s right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year.”

In its petition, the Wikimedia Foundation, the nonprofit that operates Wikipedia and other Wikimedia free knowledge projects, argued that its challenge should be allowed to proceed, despite the government’s sweeping invocation of “state secrets.” This privilege allows the government to withhold information in legal proceedings if disclosure would harm national security. Wikimedia sought to move forward in the case based on the wealth of public information about the breadth and operation of Upstream surveillance, including numerous official disclosures by the government itself.

The American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP represented the Wikimedia Foundation in the litigation.

Upstream surveillance is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the government to intercept Americans’ international communications without a warrant, so long as it is targeting individuals located outside the U.S. for foreign intelligence purposes. Section 702 will expire later this year unless it is reauthorized by Congress...