Nov 252012
 

Leahy (VT-D) scuttles his warrantless e-mail surveillance bill

After public criticism of proposal that lets government agencies warrantlessly access Americans’ e-mail, Sen. Patrick Leahy says he will “not support” such an idea at next week’s vote.

 

C/NET NEWS
by DeClan McCullagh
November 20, 2012

 

Sen. Patrick Leahy (D-VT) won’t support warrantless e-mail access, although an aide said only broad exceptions were off the table. (Credit: U.S. Senate)

 

Sen. Patrick Leahy has abandoned his controversial proposal that would grant government agencies more surveillance power — including warrantless access to Americans’ e-mail accounts — than they possess under current law.

The Vermont Democrat said today on Twitter that he would “not support such an exception” for warrantless access. The remarks came a few hours after a CNET article was published this morning that disclosed the existence of the measure.

A vote on the proposal in the Senate Judiciary committee, which Leahy chairs, is scheduled for next Thursday. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.

Leahy’s about-face comes in response to a deluge of criticism today, including the American Civil Liberties Union saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress — with more than 2,300 messages sent so far — titled: “Tell Congress: Stay Out of My Email!”

A spokesman for the senator did not respond to questions today from CNET asking for clarification of what Leahy would support next week. (We’ll update this article if we receive a response.)

A Democratic aide to the Judiciary committee did, however, tell CNET this afternoon that Leahy does not support broad exceptions for warrantless searches of e-mail content.

A note from Leahy’s Twitter account added: “Technology has created vacuum in privacy protection. Sen. Leahy believes that needs to be fixed, and #ECPA needs privacy updates.” That’s a reference to the 1986 Electronic Communications Privacy Act, which currently does not require that police always obtain a warrant for the contents of e-mail and other communications.

This revised position will come as a relief to privacy advocates and business lobbyists, who have been scrambling since last week to figure out how to respond to Leahy’s revamped legislation. Some portions would have imposed new restrictions on law enforcement, while others would lessen existing ones, making the overall bill unpalatable to many groups.

The Center for Democracy and Technology, which is coordinating an industry coalition pressing for surveillance reforms, said today that: “We wouldn’t support the rewrite described in CNET.” (Members of the coalition include Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter.)

Leahy’s proposal would have allowed over 22 agencies — including the Securities and Exchange Commission and the Federal Communications Commission — to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would have given the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

That was an abrupt departure from Leahy’s earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. He boasted last year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.”

One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy’s original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.

Leahy, a former prosecutor, has a mixed record on privacy. He criticized the FBI’s efforts to require Internet providers to build in backdoors for law enforcement access, and introduced a bill in the 1990s protecting Americans’ right to use whatever encryption products they wanted.

But he also authored the 1994 Communications Assistance for Law Enforcement Act, which is still looming over Web companies, and the reviled Protect IP Act. An article in The New Republic concluded Leahy’s work on the Patriot Act “appears to have made the bill less protective of civil liberties.” Leahy had introduced significant portions of the Patriot Act under the name Enhancement of Privacy and Public Safety in Cyberspace Act (PDF) a year earlier.

 

Here’s more reaction to Leahy’s proposed changes:

  • Executives at DataFoundry, a provider of data center services in Austin, Tex., said the proposed changes were an unacceptable breach of Fourth Amendment protections against unreasonable search and seizure.

    Ronald Yokubaitis, co-CEO of Data Foundry, said giving the government near-unchecked authority to search consumer information stored in the cloud would destroy confidence in cloud-based services and encourage more businesses to move overseas, where protections are greater.

    “If this language comes in, we are opposed to the bill,” Yokubaitis said. “It will kill cloud computing.”

  • Several members of the coalition contacted by CNET today reiterated support for the September version of Leahy’s amendment, which included a warrant provision. An Intel spokeswoman forwarded a letter in support of the earlier version of the legislation, adding: “Our position of support for the warrant requirement is unchanged.”
  • Kim Hart, a spokeswoman for Neustar, also endorsed the September version of the measure.

    “As a member of the Digital Due Process coalition, we supported Senator Leahy’s original legislation,” she said in an e-mail. “We have not yet had the opportunity fully to consider revisions to the legislation, though our experience has been that Senator Leahy addresses these difficult issues in a thoughtful and balanced way.”

* CNET’s Casey Newton contributed to this story.

 

Related posts

 

Direct Link:  http://news.cnet.com/8301-13578_3-57552687-38/leahy-scuttles-his-warrantless-e-mail-surveillance-bill/

May 312012
 

Feds Want Warrantless Spying Loss Overturned, Saying the Law Can’t Touch Them

 

WIRED

by  David Kravets

May 31, 2012

 

(Image courtesy the U.S. Army)

 

The Obama administration is set to argue to a federal appeals court Friday that the government may breach, with impunity, domestic spying laws adopted in the wake of President Richard M. Nixon’s Watergate scandal.

The case tests whether Americans may seek recourse or monetary damages when a sitting U.S. president bypasses Congress’s ban on warrantless spying on Americans — in this instance when President George W. Bush authorized his secret, warrantless domestic spying program in the aftermath of the September 2001 terror attacks.

A federal judge found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia in 2004 were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers.

The document was later declared a state secret, removed from the long-running lawsuit and has never been made public. With that document ruled out as evidence, the lawyers instead cited a bevy of circumstantial evidence that a judge found showed the government illegally wiretapped the lawyers as they spoke on U.S. soil to Saudi Arabia.

Against the government’s objections, San Francisco U.S. District Court Judge Vaughn Walker awarded the two lawyers — Wendell Belew and Asim Ghafoor — $20,400 each in damages and their legal counsel $2.5 million in costs. It marked the first time anyone had prevailed in a lawsuit challenging Bush’s so-called Terrorist Surveillance Program.

The government appealed to the 9th U.S. Circuit Court of Appeals, and arguments before a three-judge panel are set to be heard in Pasadena, California, this Friday.

The al-Haramain litigation was considered the dark horse in a string of lawsuits challenging the Bush spy program. Eventually, it became the only case to reach a verdict against the government, establishing that it is actually possible to hold the government to task in a public court for secretly violating the law.

More high-profile cases, such as the Electronic Frontier Foundation’s case against the nation’s telecoms for their participation in the spy program, was thrown out of court — thanks to a retroactive immunity law Congress passed in 2008. Suits brought by the American Civil Liberties Union and others have floundered — facing the burden of proving that Americans were actually victims of the once-secret spy program. In a move that bodes well for the government, the Supreme Court earlier this month agreed to hear the government’s appeal of a lawsuit brought by journalists and attorneys, arguing that the case should be dismissed because of the plaintiffs’ inability to actually prove they were spied upon.

 

The domestic spying program was first disclosed by The New York Times in December 2005, and the government subsequently admitted that the the National Security Agency was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Further news investigations found that the government had secretly enlisted the help of major U.S. telecoms, including AT&T, to spy on Americans’ phone and internet communications without getting warrants as required by the 1978 Foreign Intelligence Surveillance Act.

Parts of the surveillance program were so egregious that the upper echelon of the Justice Department, including then-Attorney General John Ashcroft, threatened to resign en masse if it wasn’t changed.

Congress, with the vote of President Barack Obama — who was an Illinois senator at the time — subsequently legalized much of the warrantless spying in the summer of 2008. The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the government’s warrantless wiretapping.

The al-Haramain lawyers, who were representing the Saudi-based charity when the U.S. government declared it a terror group in 2004, sued the government under the Foreign Intelligence Surveillance Act, a 1978 measure adopted in the aftermath of Watergate to set domestic spying boundaries.

The government, however, claims said it cannot be held liable under the spying law, and that Congress has not waived sovereign immunity — meaning the government has not consented to being sued for breaching its own laws.

“In sum, there is no waiver of sovereign immunity here permitting the district court’s multi-million dollar damages and attorney fees judgment against the government. For this reason, the judgment of the district court must be set aside as a matter of law on this sovereign immunity ground alone, and this court need not proceed any further to dispose of this appeal,” Justice Department attorney Thomas Bondy wrote in a court filing. (.pdf)

Bondy also argued in a court briefs that Judge Walker should have dismissed the lawsuit after both the Bush and Obama administrations invoked the so-called state secrets privilege. The privilege was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government and its agents from court scrutiny. At the government’s request, judges generally toss lawsuits when the privilege is cited.

Judge Walker found otherwise, and the government then refused to set up a secure system to prove to the court that a secret warrant had actually been obtained, prompting Walker to consider sanctioning the government for disobeying court orders.

The attorney for the two lawyers for the now-defunct charity scoffed at the suggestion that the appeals court should reverse the monetary damages Walker awarded his clients.

“This case has now been successfully adjudicated without any breach of state secrecy or harm to national security — without using the sealed document, and without revealing intelligence sources, methods, or operational details,” attorney Jon Eisenberg wrote in a filing to the appeals court, adding:

“By an exemplary act of judicial minimalism, the district court narrowly determined the bare fact of plaintiffs’ warrantless electronic surveillance, based solely on public evidence. National security has been protected, while the rule of law has been vindicated. A more satisfactory conclusion of this litigation cannot be imagined.”

Judge Walker ruled that the lawsuit made its case using snippets of evidence, including public statements from government investigations into al-Haramain, the Islamic charity for which the lawyers were working. The evidence included speeches by government officials discussing an investigation that concluded with the listing of al-Haramain as a terror organization, the FBI’s public disclosure that it monitored al-Haramain officials, and a speech about their case by an FBI official.

The government, however, contends that the snippets do not demonstrate whether any eavesdropping was warrantless — and the Obama and Bush administrations have neither admitted nor denied the allegations.

A group of retired admirals and generals teamed with the Washington Legal Foundation to urge the court to reverse Judge Walker. They agree with the government’s contention that it was never proven that the surveillance was done without a warrant issued by the Foreign Intelligence Surveillance Act Court, a secret body the 1978 FISA legislation set up to supervise government spying of Americans. The foundation says it is “devoted to defending and promoting the principles of free enterprise and individual rights.”

But in this case, it’s siding with a secretive government program.

“They could do no more than speculate that perhaps the government did not obtain a required FISA warrant before engaging in electronic surveillance,” Richard Samp, the foundation’s attorney, told the appeals court in a filing. (.pdf)

The Electronic Frontier Foundation also weighed in with a friend-of-the-court filing. (.pdf)

“The dangers of allowing the executive unfettered power to use the state secrets privilege to turn the Constitution on and off at will are plain,” EFF legal director Cindy Cohn wrote, “and strike at the heart of our constitutional system of government.”

Judge Walker, when finding for the two lawyers, found the surveillance was unlawful (.pdf) since the government refused to say whether it did or did not have a warrant, but did not declare the Terrorist Surveillance Program unconstitutional. Walker also declined to issue punitive damages to punish the government for wiretapping in the country without warrants.

Instead, the judge granted the two spied-upon lawyers $100 a day for each of the 204 days he found that their telephone calls were wiretapped beginning in February 2004, an amount they sought. In addition, they requested about $200,000 each in punitive damages, and the same amount to be awarded to the charity — all of which was denied.

“The president and other senior executive branch officials responsible for national security necessarily bear some risk that their actions may one day be held to be unlawful,” Walker wrote in 2010, “They must balance this risk against the harm that may come to the nation if they fail to act. While the court has the constitutional duty to apply the law in cases before it and hold violators accountable, it need not mete out punitive measures on officials for perceived ‘recklessness’ in dealing with a serious, proven threat to the national security.”

Walker ruled the record showed the government had reason to believe al-Haramain supported acts of terrorism and that “critical intelligence was obtained monitoring al-Haramain.” Walker added that al-Haramain was involved in planning and financing terrorist attacks against the United States’ embassies in Kenya and Tanzania.

Despite that, the government appealed, hoping to re-establish that citizens spied on by the government in the name of national security have no recourse in the courts, even if the government flagrantly violates the laws and the Constitution.

 

Direct Link:   http://www.wired.com/threatlevel/2012/05/warrantless-spying-challenge

Apr 282012
 

#CISPA, #SOPA, #PIPA and #BigLobbying

Center for Responsive Politics
OpenSecrets.org
By Russ Choma
April 27, 2012
In an era when Republicans and Democrats can agree on almost nothing, one issue in the last three months has been providing common ground: rewriting the rules of the Internet. Privacy and free speech advocates have unleashed a groundswell of outrage as they’ve rushed to rally the public against the measures. But corporate backers of the proposals have fought back hard. 
According to an OpenSecrets.org analysis of the most recent lobbying disclosure information, five of the top ten bills that have been lobbied the most intensely so far this year are Internet-related, and most have bipartisan and industry backing. Major cash is being laid out to push their passage.
The most recent bill to stir things up is the Cyber Intelligence and Sharing Protection Act (CISPA), which would allow private companies to share far more data on users with the federal government in what backers say is an effort to improve cybersecurity. Opponents claim it would severely undermine the privacy rights of many Americans. The bill was passed by the House last night and now faces a tougher battle in the Senate (and the threat of a veto by President Obama).  

A list of companies and organizations that have sent letters of support for the bill to the House Intelligence Committee, where the legislation was created, meshes closely with the list of top lobbying groups so far this year — not to mention groups that lobbied on SOPA and PIPA

For example, AT&T, which sent this letter, spent more money lobbying in the first three months of 2012 than any other single corporation ($7 million, second only to the mega-trade organization Chamber of Commerce, which also lobbied on CISPA though to a lesser extent). The telephone utilities industry as a whole, which includes AT&T and Verizon (which sent this letter) spent $15.3 million in the first quarter of this year, increasing its lobbying expenditures by 35 percent over the previous three months. The total laid out for lobbying by the computer/Internet industry, which includes some of the biggest backers of CISPA, SOPA and PIPA, fell 6 percent in the first quarter — but at $32.1 million, the industry was still the sixth-largest spender on lobbying amont all industries so far in 2012.
It’s hard to assess how much each of these companies spent lobbying Congress specifically on CISPA — or other hot-button Internet bills — because many of these companies have a variety of issues they’re pursuing on Capitol Hill, but are required to report just one dollar amount covering everything. AT&T, for instance, spent its $7 million talking to lawmakers about 121 separate pieces of legislation.
But it’s clear that the lobbying firepower on the other side of the issue is a fraction of what supporters have. One of the most vocal opponents of CISPA is the American Civil Liberties Union – which has spent $507,000 lobbying so far this year, a 28 percent increase from the last three months of 2011. But the group used that money to lobby on 109 different bills, almost as many as AT&T. Another group that has taken a prominent stand against CISPA is the American Library Association, which has spent $54,000 so far this year, spread over 56 different pieces of legislation. 
Another indication of the collective influence of backers of CISPA is the amount of money individuals or PACs affiliated with the organizations have given to key lawmakers on the issue. Last week we reported that the bill’s original sponsor, Mike Rogers (R-Mich.), had received $104,000 from groups that lobbied on the bill. With new campaign finance reports filed since that story, OpenSecrets.org data now shows that Rogers has received at least $175,000 from organizations that have lobbied on the bill. That’s about 15 percent of the total $1.1 million he has reported raising this election cycle. The top two groups: defense contractor SAIC (whose PAC has given Rogers $20,000 this election cycle) and Koch Industries (whose PAC has given Rogers over $14,500.)
Check out all of the donations Rogers has received on our profile of him here, and the entire list of organizations that have lobbied on CISPA here on our profile of the legislation.
Jan 012012
 

After Struggle on Detainees, Obama Signs Defense Bill

The New York Times
By
 December 31, 2011

 

 

HONOLULU —

 

President Obama, after objecting to provisions of a military spending bill that would have forced him to try terrorism suspects in military courts and impose strict sanctions on Iran’s oil exports, signed the bill on Saturday.

He said that although he did not support all of it, changes made by Congress after negotiations with the White House had satisfied most of his concerns and had given him enough latitude to manage counterterrorism and foreign policy in keeping with administration principles.

“The fact that I support this bill as a whole does not mean I agree with everything in it,” Mr. Obama said in a statement issued in Hawaii, where he is on vacation. “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

The bill authorizes $662 billion in military spending through 2012. It is a smaller amount than the Pentagon had asked for, but it does not impose the radical cuts that the military faces in coming years.

The White House had said that the legislation could lead to an improper military role in overseeing detention and court proceedings and could infringe on the president’s authority in dealing with terrorism suspects. But it said that Mr. Obama could interpret the statute in a way that would preserve his authority.

The president, for example, said that he would never authorize the indefinite military detention of American citizens, because “doing so would break with our most important traditions and values as a nation.” He also said he would reject a “rigid across-the-board requirement” that suspects be tried in military courts rather than civilian courts.

Congress dropped a provision in the House version of the bill that would have banned using civilian courts to prosecute those suspected of having ties to Al Qaeda. It also dropped a new authorization to use military force against Al Qaeda and its allies.

Civil liberties groups, including the American Civil Liberties Union, still oppose the law, in part because of its authorization of military detention camps overseas. But Mr. Obama’s signature is likely to settle, at least for now, the battle between the White House and Congress over executive authority in the treatment of detainees.

The White House also wrestled with Congress over requirements that the United States punish foreign financial firms that purchase Iranian oil, including through Iran’s central bank. Such a step would greatly increase the pressure on Iran over its nuclear program.

But the administration feared that if the measures were imposed too hastily, they could disrupt the oil market, driving up prices and alienating countries, including close allies, that the United States is seeking to enlist in its pressure campaign against Iran.

Under the terms of the bill, Mr. Obama can delay sanctions by six months to assess their impact on oil prices. The president can also apply to Congress for a waiver exempting a country’s financial firms from sanctions, if he determines that the country significantly reduced its purchases of Iranian oil in the preceding 180 days. Or he can apply for a waiver exempting a country on national security grounds.

Senate Republicans, who pushed for the tougher sanctions, said it would be difficult for Mr. Obama to invoke a waiver, since it could make him look weak on Iran in an election year. But the administration said it was committed to imposing the sanctions.

“We have to do it in a timely way and phased way to avoid repercussions to the oil market, and make sure the revenues to Iran are reduced,” said an administration official who spoke on the condition of anonymity. “But we believe we can do that.”

 

Direct Link:  http://www.nytimes.com/2012/01/01/us/politics/obama-signs-military-spending-bill.html?nl=todaysheadlines&emc=tha24

Nov 172011
 

Fib on Facebook? U.S. Law Calls It Criminal, Critics Warn
By Judson Berger
November 17, 2011

Ever fib about your age on a dating site?

 

What about on Facebook?

These infractions could be a federal crime under an obscure 1986 anti-hacking law that was passed well before the advent of social networking sites. Advocacy groups on both sides of the aisle are now pressing lawmakers to re-write the law, to prevent an administration push to toughen penalties from treating online mischief-makers the same as criminal hackers.

The debate centers on a law known as the Computer Fraud and Abuse Act, which has been broadened several times since 1986. Critics of the law point most frequently to a section that imposes penalties on anyone who knowingly “exceeds authorized access” on a computer to obtain information.

“Authorized access,” they warn, could refer to anything from a website’s “Terms of Use” agreement to an employer’s restrictions on computer use. They cite cases where federal prosecutors have charged individuals for breaching these agreements — and question whether that standard could hold casual slip-ups on the Internet to the same standard as malicious cyber-criminal activity.

“Now it is possible for someone to be prosecuted for violating the user agreement in a social networking site,” Rep. Bobby Scott, D-Va., said at a hearing Tuesday on Capitol Hill.

The hearing by a House Judiciary subcommittee marked the latest public debate in D.C. over the law.

The Obama administration is currently pushing to increase penalties under the Computer Fraud and Abuse Act. The Department of Justice downplays concerns about the broadness of the language, and stresses that the government is trying to deter serious cyber-threats and cyber-criminals — such as the mass theft of credit card data.

But Berin Szoka, president of TechFreedom, said it’s critical that Congress make sure the law targets real criminals.

“Hacking is a real problem,” he told FoxNews.com. “But … any effort to expand (the law) has to also insure that the law is not used to criminalize violations of terms of service.”

George Washington University Law Professor Orin Kerr testified on Capitol Hill Tuesday that as written, the law criminalizes routine computer use in a way that could implicate just about anybody.

For instance, Kerr noted that while he lives in Arlington, Va., his Facebook profile states that he lives in Washington, D.C.

“According to the Justice Department, I violate federal criminal law every time I log in,” Kerr said. Kerr suggested tweaking the language of the law to clarify that it does not apply to people who violate “terms of service” agreements.

The Justice Department, however, argues that the language in the law on “authorized access” should stand to give the department the tools it needs to prosecute bona fide criminals.

“Restricting the statute in this way would make it difficult or impossible to deter and address serious insider threats through prosecution,” Justice official Richard Downing said in written testimony submitted to the House Judiciary Committee.

Downing explained that most employers have “clear and reasonable restrictions” on how sensitive computer data can be accessed by employees. The department, he said, prosecutes people who violate those rules to obtain sensitive information. Changing the law would prevent prosecution of “serious insider cases” — for instance, a health insurance administrator accessed hundreds of thousands of worker names and Social Security numbers in 2006, and was prosecuted under this law.

Kerr praised the Senate Judiciary Committee for recently amending the law in an attempt to narrow its scope to ensure that routine computer usage is not criminalized. The Senate committee in September approved an amendment that would exempt people whose only infraction is a violation of a user agreement.

A House Judiciary Committee aide told FoxNews.com that the Justice Department is “concerned” about the action taken by the Senate. The House, though, has not yet taken up any proposal on the issue.

Asked for comment, a Justice Department spokesman referred back to Downing’s testimony.

Kerr and several other groups appealed to Congress back in August to change the law. In a joint letter, they expressed concern about an “overbroad application of the law.” A key concern is that by relying on terms of use agreements, the courts would effectively allow those contractual agreements to define what is and is not a criminal act.

“If a person assumes a fictitious identify at a party, there is no federal crime,” the letter said. “Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation.”

The organizations on the letter included the American Civil Liberties Union, the Electronic Frontier Foundation, the Center for Democracy and Technology and conservative groups like FreedomWorks and Americans for Tax Reform.

While defending the law, Downing pressed for increasing maximum penalties on some violations.

He claimed cyber-crimes are still treated more delicately in U.S. law than related physical crimes. Downing, the deputy chief at the computer crime division, noted the maximum penalty for computer fraud is five years, but 20 years for mail and wire fraud.

“Criminals from across the country and around the world are taking advantage of the relative anonymity provided by the Internet to compromise our critical infrastructure, obtain trade secrets, intrude into bank accounts, and steal the personal and financial information of ordinary Americans,” Downing said. “Federal law needs to more effectively deter this spreading criminality.”

Though the Justice Department has used the law to go after those who violate terms of service agreements, its track record is spotty. In perhaps the most famous case in recent history, a federal judge threw out the 2008 convictions against Missouri mother Lori Drew. Drew was prosecuted under the Computer Fraud and Abuse Act for creating a fake MySpace page, in violation of MySpace’s terms, and using it to harass a teenage girl who later killed herself.

Direct Link: http://www.foxnews.com/politics/2011/11/17/fib-on-facebook-us-law-calls-it-criminal-critics-warn/#ixzz1e1MFT83I