Senators Merkley and Lee introduce bill to declassify FISA court opinions

From the press release on Sen. Merkley’s website (emphasis mine):

June 11, 2013

Washington, DC – Today, Oregon’s Senator Jeff Merkley and Senator Mike Lee (R-UT), accompanied by Senators Patrick Leahy (D-VT), Dean Heller (R-NV), Mark Begich (D-AK), Al Franken (D-MN), Jon Tester (D-MT), and Ron Wyden (D-OR), introduced a bill that would put an end to the “secret law” governing controversial government surveillance programs.  This bill would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how broad of a legal authority the government is claiming to spy on Americans under the PATRIOT Act and Foreign Intelligence Surveillance Act…

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Daniel Drezner: Man, the State, and Trust

Not often do I read something and think “I wish I had written that.”  Daniel Drezner, Man, the State, and Trust is one of those (emphasis is mine):

…I do feel compelled … to blog about Edward Snowden, his NSA revelations, the scorn heaped upon him by much of the foreign policy community, and the furious pushback by other quarters against that scorn… I’m going to resist blogging about Snowden himself, since that A) distracts from the larger question of whether the NSA revelations are truly scandalous; and B) leads to some really bad psychoanalysis-cum-social commentary.

Thomas Friedman captures the sentiments of a lot of the foreign policy community with today’s column.  This passage in particular pretty much sums it up:

Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11 — abuse that, so far, does not appear to have happened. But I worry even more about another 9/11. That is, I worry about something that’s already happened once — that was staggeringly costly — and that terrorists aspire to repeat.

I worry about that even more, not because I don’t care about civil liberties, but because what I cherish most about America is our open society, and I believe that if there is one more 9/11 — or worse, an attack involving nuclear material — it could lead to the end of the open society as we know it. If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.”That is what I fear most.

That is why I’ll reluctantly, very reluctantly, trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime.

You know what?  Friedman’s going to earn a lot of calumny for this column, but at least he’s straightforward about his cost-benefit analysis.  And it bears repeating that the revelations to date involve programs that have been signed off by the relevant branches of government.

That said, here’s what I worry about:

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Background information on the NSA’s PRISM program:

Third-Party Doctrine, from what I gather the primary argument for PRISM not being a grand-scale 4th Amendment violation:


“Don’t be evil.”

An open letter from Google’s chief legal officer:

Dear Attorney General Holder and Director Mueller

Google has worked tremendously hard over the past fifteen years to earn our users’ trust. For example, we offer encryption across our services; we have hired some of the best security engineers in the world; and we have consistently pushed back on overly broad government requests for our users’ data.

We have always made clear that we comply with valid legal requests. And last week, the Director of National Intelligence acknowledged that service providers have received Foreign Intelligence Surveillance Act (FISA) requests.

Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope. Google’s numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google’s initiative. Transparency here will likewise serve the public interest without harming national security.

We will be making this letter public and await your response.

David Drummond
Chief Legal Officer

Domestic surveillance

The NY Times editorial board asks the right questions re domestic surveillance (emphasis mine):

For years, as the federal surveillance state grew into every corner of American society, the highest officials worked to pretend that it didn’t exist. Now that Americans are learning what really takes place behind locked doors, many officials claim they are eager to talk about it. “That’s a conversation that I welcome having,” President Obama said on Saturday. Senator Dianne Feinstein, chairwoman of the Intelligence Committee, said on Sunday that she was open to holding a public hearing on the subject now, a hearing next month, a hearing every month.

This newfound interest in openness is a little hard to take seriously, not only because of the hypocrisy involved but because neither official seems to want to do more than talk about being open. If the president wants to have a meaningful discussion, he can order his intelligence directors to explain to the public precisely how the National Security Agency’s widespread collection of domestic telephone data works. Since there’s not much point in camouflaging the program anymore, it’s time for the public to get answers to some basic questions.

Are the calls and texts of ordinary Americans mined for patterns that might put innocent people under suspicion? Why is data from every phone call collected, and not just those made by people whom the government suspects of terrorist activity? How long is the data kept, and can it be used for routine police investigations? Why was a private contractor like Edward Snowden allowed to have access to it? So far, no one at the White House seems interested in a substantive public debate.

More if you follow the link above.  (My earlier thoughts here.)

Mr. Fish on the subject:

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What’s all the fuss? It’s only metadata.

Glenn Greenwald in the Guardian:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

So, if you’re a Verizon customer, your government knows who you called, where you were when you called them, where they were and how long you spoke with them. (To clarify, there are two surveillance programs in the news:  an named NSA program where phone records of Americans are the target of the surveillance and PRISM, also an NSA program, where on-line communications of foreigners are the target of surveillance.   Domestic surveillance is the big issue as far as I’m concerned.)  But, hey, no biggee because they didn’t record the actual conversation and there are checks in place to prevent abuse, right?   No reason to be uncomfortable with the fact that any calls you made to Tea-Party-sympathizer cousin or Occupy-Wall-Street-sympathizer brother-in-law are part of some government database, right?   Like I said, it’s only metadata and there are checks in place to prevent abuse.  Just listen to the president (after all, he’s listening to you…):

“If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution and due process and rule of law, then we’re going to have some problems here.”

Pres. Barack Obama, 7 June 2013

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