February 27 Panel 08

Fanny Pelpel

http://threatpost.com/justice-dept-eases-gag-order-on-fisa-national-security-letter-reporting/103903

This article deals with National Security Letters (NSL) and the gag order that is applied with regards to them in particular. This issue has generated a lot of tensions over the years, especially from a First Amendment perspective, leading some service providers such as Google, Facebook, Yahoo and Microsoft to file lawsuits before the Foreign Intelligence Surveillance Court. That is why in January, a Justice Department ruling was released, aiming to ease this gag order and improve transparency.

The author of the article explains the two options technology and telecommunications companies have: they will be able to report the number of FISA orders for content, non-content, as well as the number of customer accounts affected for each in bands of 1,000 requests and or to report all national security requests, NSLs or FISA orders, and the number of customer accounts affected with exact numbers up to 250 requests, and thereafter in bands of 250.

These new measures are interesting and debatable for different reasons. Firstly, as the article mentions it, reporting on national security orders issued against data collected by new company products and services must be delayed two years. This alleged improvement is thus limited to established companies and does little to help start-ups and recently created ones in a transparency promotion campaign.

The disclosure mechanism is not exempt of criticisms either. Reporting these orders in increments of 1,000 could backfire, in the sense that while the purpose of it was to accurately reveal to what extent companies had to cooperate with intelligence agencies, the restriction from reporting the exact number of requests could mislead users.  However the second option limits this drawback. But the underlying issue is that the number of requests and NSLs doesn’t necessary reveal the importance of information disclosed by these companies, and the impact this collection of data could have on consumers’ right to privacy.

I found this article insightful because it gives a broad view of the stakes of regulating NSLs, the tensions between ensuring the protection of national security, and the companies’ need to maintain trust with their customers for their business’ sakes, through the use of their First Amendment right to free speech.

 

 

Lisa Lansio

http://articles.latimes.com/2013/aug/09/news/la-pn-obama-patriot-act-oversight-20130809

This article discusses President Obama’s news conference on national security and privacy concerns that followed Edward Snowden’s revelations of national surveillance programs. President Obama urged Congress to make changes to the Patriot Act, which would entail greater oversight and the implementation of safeguards for the protection of privacy of individuals. President Obama also recommended that Congress consider the possibility of allowing individuals to appear in court to contest the surveillance measures as applied to them.

One of the programs that Snowden revealed to the media was an NSA program that allowed the NSA to collect virtually all American telephone calling records. President Obama mentioned this program in his speech and said that he was considering measures to restrict the NSA’s ability to collect this information. A proposal being considered by President Obama would require telecommunications companies to archive calling records themselves, which would then be available to the NSA if it obtained a warrant.

Among the other proposals being considered by President Obama is a proposal to create a permanent staff of attorneys to advocate for private citizens in cases before the Foreign Intelligence Surveillance Court (FISC). Alternatively, the President is considering allowing outside parties to file amicus briefs to the FISC. This would allow FISC to hear arguments concerning privacy and civil liberties, which may influence the court’s decision-making process.

While the President is considering supporting changes to the Patriot Act, he has also expressed his view that the Snowden revelations did not reveal abuses of the law and that the dedication to national security should remain a priority. The changes to existing surveillance laws must reflect a balance between national security and the civil liberties and rights of Americans.

 

 

Courtney Chen

http://www.nytimes.com/2013/09/14/business/global/china-hems-in-private-sleuths-seeking-fraud.html

In August of 2013, Peter Humprhey, stood before Chinese national television, handcuffed, donning an orange prison smock and apologized to the masses for his indiscretions.  British national, Mr. Humphrey and his wife, Yu Yingzeng confessed to illegally trafficking personal information via their Hong Kong-based company ChinaWhys, a business marketed towards foreign companies seeking to operate in China. The company claimed that it specialized in advising outside investors on fraud and cheating when dealing with the potentially risky Chinese market. However, investigators contest that firm violated the law on more than ten occasions, buying and selling information that included details about the hukou personal registrations, automobile and home ownership records, family member names, and cross-border travel. The Humphreys profited from these infringements of the privacy of Chinese citizens.

While the Humphrey incident is not unique in China, the arrest of Peter Humphrey illustrates the newfound interest that the Chinese government has purportedly taken with regards to data privacy. The country currently boasts a national population exceeding 1.3 billion people, over 40% of which are internet users; in 2012, online sales nearly reached a staggering $200 billion. China is in fact primed to surpass the United States in e-commerce transactions. With the internet becoming a pervasive component of business and society and digital footprints growing larger, officials have naturally become concerned with issues surrounding the ways Chinese companies collect and store information about internet users. The benefits that the internet brings have come at an inevitable cost: the loss of data privacy, making users more susceptible to data breaches and identity fraud. Perhaps more importantly, officials have recognized that protecting consumer privacy can increase international commercial interests. Despite China’s robust e-commerce market, some companies are hesitant about entering a foreign environment with dubious security measures.

Although an omnibus privacy framework has yet to exist, the Chinese government has responded to concerns with a variety of piecemeal provisions. Notably, in 2013, the National People’s Congress enacted the first national standard on personal information protection, though the actual efficacy of the guideline has yet to be realized. After all, China and its “Great Firewall” is not historically known for embracing privacy with open arms. We will see within the upcoming years if its efforts produce actual results.

 

 

Christina Schnurr

https://www.accessnow.org/blog/2014/01/24/structural-changes-to-surveillance-court-offer-hope-for-new-protections-for

Recall our class lecture and discussion about the privacy protections, or arguably lack thereof, for United States persons and non-United States persons under section 702. We noted that the statutory language limiting the government’s targeting program—for example, the government cannot intentionally target anyone located in the US and cannot intentionally target a non-US person for the purpose of targeting a person reasonably believed to be in the US—is broad and, consequently, cause for concern, particularly in light of the increasing use of ex parte proceedings before the Foreign Intelligence Surveillance Court (FISC).

Attached is a link to an article by Drew Mitnick and Peter Micek for Access, an international human rights organization, suggesting structural changes to FISC that Mitnick and Micek argue will better protect the privacy of US and non-US persons: incorporating special advocates at FISC deliberations, increasing technical assistance to FISC judges, and changing the appointment procedures. While the recommendations for improving technical knowledge and diversity of viewpoints from the FISC judges are significant to protecting privacy, Mitnick and Micek’s recommendation for special advocates’ involvement is of particular interest to us in light of our in-class discussion about the concern that, currently, no person challenges or demands in-court clarification of FISC’s or the government’s statutory interpretation of “intentionally” or “reasonably believed” in authorizing collection of content under section 702.

Mitnick and Micek provide a list of special advocate best practices to ensure various goals of reforms such as expertise, fair representation, accountability, and due process. In addition, they note that having a special advocate would ensure transparency through declassifications of certain FISC opinions—a highly desired element of reform, but often seen as too risky to national security because of the sensitive information found in some opinions. Mitnick and Micek also suggest special advocates have full access to join a FISC deliberation voluntarily rather than only by a summoning by a FISC judge. (It might be even more advisable to mandate the presence of a special advocate in all deliberations, but that is not mentioned in the article). The list of best practices, particularly the special advocates’ abilities to declassify certain opinions and join deliberations on their own initiative, are viable remedies to the concern that section 702 does not curtail government abuse because of the broad statutory language that goes largely unchallenged.

To be sure, calling for a special advocate to challenge the government’s claims in FISC proceedings is not a novel reform idea—both reports by the Privacy and Civil Liberties Oversight Board and President Obama’s Review Group endorsed an independent public advocate—which perhaps indicates the receptivity by intelligence agencies and the practicability in implementation.

 

 

Adam Mechanic

Article by Eli Lake, February 17, 2014: Spy Chief: We Should’ve Told You We Track Your Calls.

 

This article discusses an exclusive interview with James Clapper, Director of National Intelligence. In the interview Clapper admitted that public concern over the collection of their phone records by the government could have been avoided. Clapper is of the opinion that the American people would have been more comfortable with surveillance had the government been open about the necessity of it in the wake of 9/11, clearly explained how the process would work, and what the safeguards were going to be.

 

Clapper explained that the initial program of surveillance after 9/11 was the origin of the program now codified in section 215, a formerly secret law revealed by Edward Snowden. Although Clapper has subsequently declassified a lot of material relating to 215, admitting that the government should have been more transparent is a dramatic departure for the Director of National Intelligence. The article points out that, in a testimony in front of the Senate Select Committee on Intelligence, Clapper openly denied the collection of American citizen’s data. It seems clear that Clapper supported a policy of secrecy at some point, so perhaps the Snowden leaks and subsequent media scrutiny made him realize the error in such a policy.

 

Would transparency from the outset have helped Americans feel comfortable with surveillance? One should keep in mind that a majority of Americans think that NSA phone tracking is acceptable in the context of fighting terrorism, but this majority is a small one: 56%. Perhaps people’s concern is more about the secrecy of surveillance and less about the actual surveillance itself, which would mean initial transparency would certainly have helped. The problem for the government also seems to be the media frenzy that occurred after the Snowden leaks despite the majority support for certain NSA activities. Overall, it seems that things could not have gone worse for the government than they did after the Snowden leaks, at least from a PR perspective, if they were simply honest with the American people at the beginning.

 

 

Oren Hoffman

Surveillance and the Big Tech Companies

Last year, commentators heavily criticized technology giants such as Google, Yahoo, and LinkedIn for revealing troves of user data to the United States government in response to Foreign Intelligence Surveillance Act (“FISA”) requests and national security letters (“NSLs”).  The Foreign Intelligence Surveillance Court (“FISC”) is charged with overseeing FISA requests for surveillance, and the Court operates largely in secret.  NSLs are issued by FBI officials and typically have nondisclosure provisions.  Until recently, it was entirely unclear the volume and type of information internet companies were revealing to the government in response to these secretive requests.

Google, Yahoo, Facebook, and LinkedIn sued the Department of Justice last summer.  These companies wanted to publicly reveal more information about the types and content of data requests they receive from the government.  The companies contended that their “businesses are hurt by any perception [that] they are arms of vast government surveillance.”

The parties reached an agreement last month.  Under this new agreement, companies such as Google can reveal more information about the types and volume of data requests originating from the government.  These companies are also permitted to reveal how many customer accounts are affected by these requests.

This agreement represents a minor step towards creating a more transparent surveillance system.  For instance, Google can only reveal the kind and volume of information the government is requesting, and how many users are affected.  This agreement did not impact the standard the government must establish for a FISC order or the nondisclosure elements of NSLs.

Nevertheless, internet users can now begin to understand the breadth and volume of the government’s surveillance.  This new information will both inform the debate as to whether to curtail this type of surveillance and allow internet users to better identify what kinds of data they are potentially sharing with the government when using the web.

 

 

Geetanjali Visvanathan

http://www.nytimes.com/2014/02/26/us/justice-dept-informs-inmate-of-pre-arrest-surveillance.html?

http://www.nytimes.com/2014/01/30/us/warrantless-surveillance-challenged-by-defendant.html

Yesterday’s NY Times carried the third incident of the government serving a notice informing a US citizen of his pre-arrest warrantless wiretapping under the FISA Amendment Act, 2008 (FAA). Unfortunately in this case the critical information was given to the defendant much after he had accepted the plea bargain.  This recent change in DOJ’s policy of issuing notices and informing defendants of such warrantless wiretapping is the result of Solicitor General, Donald Verrilli Jr. statements made before the Supreme Court in Clapper v. Amnesty International USA where he conceded that prosecutors were obliged to inform the defendants if they faced any such evidence.  Though last year the Supreme Court dismissed this particular constitutional challenge to the FAA on the ground of lack of evidence and standing, this issue is far from over.

In January this year Mr. Muhtorov, a Colorado resident, who was the first to receive such a notice filed a motion before the District Court of Colorado challenging the validity of FAA. The surprising part in Mr. Muhtorov case was that the FAA notice was given to him 20 months after the initial FISA notice. Thus, raising a reasonable suspicion that the prosecutors had initially informed the defense only about the evidence collected under a wiretap order and concealed prior evidence collected through warrantless wiretapping.

Apart from challenging FAA on the ground of violation of the reasonable expectation of privacy, warrantless search and reasonableness standard under the Fourth Amendment, Mr. Muhtorov also argues that FAA’s targeting and minimization requirements permit the government to target any foreigner abroad for surveillance and to acquire and retain any U.S. persons’ international communications with (or about) those foreigners that relate to “the conduct of the foreign affairs of the United States”. Thus, FAA exposes every international communication-including by US citizens at one end to warrantless surveillance-thus giving unfettered surveillance power to the government. In all probability this issue will again be before the Supreme Court and we can only wait and see how the Supreme Court determines it this time.

 

 

Brian Wood

Charlie Savage, “Warrantless Surveillance Challenged by Defendant,” The New York Times (Jan. 29, 2014)

The Foreign Intelligence Surveillance Act (FISA) has been in the news a lot lately in the aftermath of the Snowden Leaks. The FISA Amendments Act of 2008 permits the targeted domestic surveillance of non-US persons for national security purposes. Up until now NSA has engaged in its FISA surveillance largely in secret, but there has been growing public consciousness and demand for transparency and judicial review of such domestic surveillance.

Because of the secretive nature of the NSA in its surveillance pursuant to FISA, there are very limited opportunities to look into how FISA powers are being used, and just as few opportunities for the courts to review those powers. Just last month, two different district courts are now in the midst of first-of-their kind legal actions that could promise future transparency.

First, an Illinois District Court Judge ordered the government to turn over to a defendant-classified information gathered pursuant to FISA surveillance conducted for national security purposes. “No defense lawyer has apparently ever been allowed to see such materials since the Foreign Intelligence Surveillance Act was enacted in 1978.” The court took this first-of-its-kind move over the protests of Attorney General Eric Holder, who in a sworn affidavit argued that such disclosure of confidential FISA material would threaten national security. The court considered Holder’s protest and considered the fact that defense counsel already had security clearance, and wrote that “[w]hile this court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the court finds that the disclosure may be necessary….This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials.”

Second, and the focus of the New York Times article, the defense in a Colorado District Court criminal case filed a motion to suppress evidence collected from the FISA-related domestic surveillance of the perminant-resident defendant. The motion, which can be found at http://www.documentcloud.org/documents/1010478-muhtorov-defendants-motion-to-suppress.html argued that the surveillance amounted to a “search” in violation of the Fourth Amendment. “The fruits of the government’s surveillance of Mr. Muhtorov must be suppressed because the statute [the FISA Amendments Act of 2008] that authorized the surveillance is unconstitutional.”

The defendants in both cases have the same immediate goals for relief: discovery and exclusion of the fruits of FISA materials. Bigger picture, both cases could bring the issue before the Supreme Court of whether surveillance under the FISA Amendments Act of 2008 amounts to a violation of the Fourth Amendment. In the Illinois case, defense counsel are holding off on challenging the constitutionality of FISA, which they may get to eventually in the event they need to argue for a mistrial; at the moment they are more concerned with discovery. On the other hand, defense counsel in the Colorado case are already actively challenging the statute’s constitutionality.

Both cases are operating in the wake of last year’s Supreme Court decision in Clapper v. Amnesty International to reject a challenge to the 2008 Amendment, although the court did so on procedural grounds, finding that the plaintiffs could not prove that they had been the victims of wiretapping, and therefore lacked standing to challenge the law. The court came to this conclusion after Soliciter General Donald Verrilli “assured the justices that such defendants would receive notice, allowing anyone with proper standing to challenge the 2008 law.” However, as the Snowden leaks would help reveal, at the time when the alleged wiretapping took place in Amnesty International, the government had never put a large class of surveilled defendants on notice that they had been wiretapped.

Since Amnesty International, (and since the Snowden revelations), Soliciter General Donald Verrilli put pressure on the Justice Department to change its policy, which had previously not required giving defendants notice that they had been subject to FISA surveillance when that surveillance was an “earlier link in an investigative chain.” The Justice Department complied, and began going through its case files looking for defendants who had been subjected to early-stage FISA surveillance. The defendants in the Colorado case and the Illinois case are the only two defendants to have been given notice of their surveillance following this investigation, and as such, if either case were to go to the Supreme Court, neither would be a knocked down on the same standing issue as Amnesty International, and the court may be forced to finally grapple with the FISA Amendment Act’s constitutionality.

 

 

Sindhu Kandachar Suresh

http://www.rightsidenews.com/2014022433911/us/homeland-security/fisa-the-nsa-and-america-s-secret-court-system.html

This article focuses on the Foreign Intelligence Surveillance Court (FISA Court or FISC) created in 1978 as a result of recommendations of the Church Committee. Even though the primary function of the FISC was to double up as a protective measure against arbitrary activities of the intelligence services by requiring the agency to obtain warrants from the Court before intercepting communications and thereby bringing NSA under the realm of regular judicial supervision, the article looks at how FISC has failed to perform this essential function.

The article looks at the secretive nature of the FISC which unlike regular Courts, meets secretively and holds in camera proceedings with select few government representatives lacking the required ‘due process of law’ with government being the only party to the proceeding. Further, a warrant sought for surveillance from FISC may authorize mass collection of information of millions of people for a long duration which has been condemned by Judge Leon in Klayman preliminary judgment stating “… no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion”. The Court’s role as a check in curbing the agency’s arbitrary surveillance activity is further diminished by the statistics provided in the article. For Instance, In the 33,949 applications that were resolved from 1979-2012, only 11 were rejected (0.0324%).

The overarching powers of FISC have expanded to conducting quasi-constitutional proceedings, allegedly validating the surveillance programs as being within the constitutional powers of the US government. This brings us to ponder on whether a Court which conducts secretive hearings in absence of affected parties and which fails to follow due process of law should be recognized as a Court at al.