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FISA and Border Searches of Laptops - Via Slashdot: Your Rights Online:
With the recent attention to the DHS's draconian policy on laptop searches at borders, a blog post by Steven Bellovin from last month is worth wider discussion. Bellovin extrapolates from the DHS border policy on physical electronic devices and asks why authorities wouldn't push to extend it to electronic data transfers. "...it would seem to make little difference if the information is 'imported' into the US via a physical laptop or via a VPN, or for that matter by a Web connection. The right to search a laptop for information, then, is equivalent to the right to tap any and all international connections, without a warrant or probable cause. (More precisely, one always has a constitutional protection against 'unreasonable' search and seizure; the issue is what the definition of 'unreasonable' is.)"
Only Government Can Argue in Secret Spy Court, Feds Say - Via Threat Level:
The Bush Administration told a secret spying court Wednesday that it should not allow the ACLU to participate in the court's review of new blanket surveillance programs that sweep in milions of emails and phone calls that cross the border, arguing the matter is too sensitive for outsiders.
Under the new spying law passed by Congress in early July, the government may order Google or AT&T or AOL, to turn over every email, phone call or IM that enter or leave the country (with just a few caveats).
For nearly 30 years, the Foreign Intelligence Surveillance Act largely banned such blanket surveillance being done inside the United States, requiring instead that the government get individualized court warrants.
But the government does have to explain to the Foreign Intelligence Surveillance Court how the vacuum cleaner doesn't suck up communications that are known to be from Americans to Americans or purely domestic communications.
The ACLU wants to be there when that happens. read more »
Salon's New Revelations on Illegal Spying - Via EFF.org Updates:
Salon today published a new article in it's series of investigations into the Bush administration's illegal spying programs: Exposing Bush's History Abuse of Power (log-in may be required).
The article describes how some in Washington D.C. are discussing the idea of a new and sweeping investigation into the White House's surveillance programs, one inspired by the famous Church Committee investigations of the 1970s. The Church Committee uncovered the extent of illegal surveillance begun during the McCarthy era and expanded under President Nixon, and lead eventually to the FISA reforms which President Bush has so famously ignored.
The article also makes new claims about the extent of the current spying program, citing the use of a secret database with roots in programs begun under President Reagan in the 1980s: read more »
Opposed to Wiretap Amnesty? Run a TV Ad for Six Bucks - Via Threat Level:
If you're one of the thousands of voters angry over the Democrats' cave on domestic spying and telecom amnesty, a new online grassroots movement is now making it easy to buy a local ad on MSNBC, CNN and several other networks, for less money than you'd think.
The grassroots group Get FISA Right has created a 30-second spot critical of the surveillance bill passed by Congress earlier this month. It's placed the spot with a Los Angeles startup that buys ad time in bulk from cable providers and resells off slivers to individuals willing to pay for airtime in markets around the country. read more »
CRS Report of the Week: The Foreign Intelligence Surveillance Act: A Sketch of Selected Issues - Via CDT - PolicyBeta:
This report was prepared and published prior to the Senate passing of FISA.
CRS Report RL34566, July 7, 2008.
From the report’s summary:
The current legislative and oversight activity with respect to electronicsurveillance under the Foreign Intelligence Surveillance Act (FISA) has drawnnational attention to several overarching issues. This report briefly outlines threesuch issues and touches upon some of the perspectives reflected in the ongoingdebate. These issues include the inherent and often dynamic tension between nationalsecurity and civil liberties, particularly rights of privacy and free speech; the need forthe intelligence community to be able to efficiently and effectively collect foreignintelligence information from the communications of foreign persons located outsidethe United States in a changing, fast-paced, and technologically sophisticatedinternational environment or from United States persons abroad, and the differingapproaches suggested to meet this need; and limitations of liability for thoseelectronic communication service providers who furnish aid to the federalgovernment in its foreign intelligence collection. Two constitutional provisions, inparticular, are implicated in this debate — the Fourth and First Amendments. Thisreport briefly examines these issues and sets them in context.
(Read Original Article - Via CDT - PolicyBeta.)
Interview with ACLU re: constitutional challenge to new FISA law - Via Salon: Glenn Greenwald:
(Updated below - Update II - Update III - Update IV)
This afternoon, I spoke with Jameel Jaffer, the Director of the ACLU's National Security Project, regarding the two legal proceedings commenced today by the ACLU challenging the constitutionality of the new FISA law. The roughly 20-minute discussion can be heard here.
The ACLU filed one action in the FISA court, requesting that -- contrary to how the FISA court normally works -- all proceedings regarding the constitutionality of the FISA law be open to the public and transparent, and that the proceedings be adversarial (i.e., that the ACLU -- rather than just the Government -- can participate). The other action was filed in a federal court in the Southern District of New York, alleging that the provisions which vest vast new warrantless eavesdropping powers in the President are, for multiple reasons, violative of the Fourth Amendment of the U.S. Constitution. The ACLU's lawsuits do not challenge the constitutionality of the telecom immunity provisions of the new FISA law because those sections will be challenged by EFF and local/affiliate ACLU groups in separate actions. The legal documents filed today by the ACLU are here.
In the podcast, Jaffer details exactly what warrantless surveillance powers the new FISA bill vests in the President, along with the reasons they are so pernicious. read more »
The ‘Repeal Immunity’ Movement Begins Today - Via EFF.org Updates:
Today, EFF Senior Staff Attorney Kevin Bankston was invited to guest-blog at The Hill.com's Congress Blog on EFF's plans in the wake of the recent surveillance law overhaul:
Our long war against warrantless wiretapping has only just begun, and we will not stop until we get that legal ruling we’ve been fighting for. Wednesday we only lost a battle, not the war, and EFF’s struggle to hold the White House and the telecoms accountable for their lawbreaking will continue on multiple fronts — starting with a constitutional challenge to the immunity provisions...
While duking it out over immunity in the courts, EFF will also continue its fight in Washington, working in the next session of Congress — a Congress likely to be much different in its composition than today’s, and working with a different president — to wipe the stain of the FAA’s immunity provisions off the books.
(Read Original Article - Via EFF.org Updates.)
ACLU Thanks Senators Who Stood for the Constitution - Via American Civil Liberties Union:
Washington, DC – After a brutal loss on the FISA Amendments Act today in the Senate, the American Civil Liberties Union expressed gratitude to the senators who cast their vote against the bill.
The following can be attributed to Caroline Fredrickson, director of the ACLU Washington Legislative Office:
“There are a few senators who deserve praise for defending the Constitution today. We applaud Senators Feingold, Leahy, Dodd, and Cardin for their tireless efforts to improve this dismal legislation. We especially missed the presence of the recovering Senator Kennedy today; his speech in February was a high point in this legislative battle. read more »
Senate Approves Wiretapping Measure With Telecom Immunity - Via NewsHour with Jim Lehrer Podcast | PBS:
The Senate voted Wednesday to keep retroactive immunity for phone companies that help with monitoring in a federal warrantless surveillance program bill. The decision defeated Democrats against it. Ray Suarez reports.
(Read Original Article - Via NewsHour with Jim Lehrer Podcast | PBS.)
American Civil Liberties Union : ACLU Sues Over Unconstitutional Dragnet Wiretapping Law:
Group Also Asks Secret Intelligence Court Not To Exclude Public From Any Proceedings On New Law's Constitutionality
FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org
NEW YORK - The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - will be greatly compromised by the new law.
The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.
"Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged," said ACLU Executive Director Anthony D. Romero. "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires." read more »
Bush Signs Spy Bill, ACLU Sues - Via Threat Level:
The American Civil Liberties Union filed suit Thursday over a controversial wiretapping law, challenging the constitutionality of the expanded spy powers Congress granted to the president on Wednesday.
The federal lawsuit was filed with the court just hours after Bush signed the bill into law.
The ACLU is suing on behalf of journalist and human rights groups, asking the court put a halt to Congress's legalization of Bush's formerly secret warrantless wiretapping program. The ACLU contends (.pdf) the expanded spying power violates the Constitution's prohibition on unreasonable searches and seizures.
On Wednesday, the Senate gave final congressional approval to a massive expansion of the Foreign Intelligence Surveillance Act, finishing a year of debate over how far the U.S. government should be able to conduct blanket surveillance using telecom facilities inside the United States.
In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence."
The ACLU contends those blanket powers to grab international communications of Americans without specific court orders violate the Fourth Amendment and would stymie journalists who often speak to confidential sources outside the country. read more »
Looking Back, Moving Forward: The Continuing Fight Against Telecom Immunity - Via EFF.org Updates:
The debate over telecom immunity has now spanned almost two years. When the first proposal to grant immunity to the telecoms was introduced in Congress, in September of 2006, no one thought the fight would last this long.
As we ponder the bizarre spectacle of a Congress that has willingly and repeatedly rolled over on the Bush administration's expansive claims of executive power, it is worth remembering that at one time it appeared that there would be hardly any resistance at all to the question of whether to grant immunity to the telecoms that participated in Bush's illegal warrantless wiretapping program.
Telecom immunity had the same air of inevitability that plenty of bad laws have as they sail through Congress to ultimate passage. For one thing, it was backed by powerful corporations that bankroll both parties and have armies of lobbyists patrolling Capitol Hill. The President vehemently insisted on immunity, repeatedly threatening to make use of his veto power against any FISA reform bill that didn't let his telecom friends off the hook. Republicans in Congress vowed to vote in virtual lockstep on the issue (and they were joined by key Democrats). The entire intelligence community thought it was a grand idea. And, while a few important articles appeared in major papers, the wiretapping scandal didn't generate the level of coverage it deserved. Many assumed the public to be acquiescent on the issue. read more »
Help EFF Continue the Fight Against Warrantless Wiretapping - Via EFF.org Updates:
In a move that I can only describe as cowardice, Congress just passed legislation meant to immunize telephone companies for their illegal, disloyal, and irresponsible behavior. EFF has been fighting against telecom immunity, and we need your help to bring the fight to the next level: read more »
Senate Backs Wiretap Bill to Shield Phone Companies - NYTimes.com - Via NYTimes.com :
WASHINGTON — More than two and a half years after the disclosure of President’s Bush’s domestic eavesdropping program set off a furious national debate, the Senate gave final approval on Wednesday afternoon to broadening the government’s spy powers and providing legal immunity for the phone companies that took part in the wiretapping program.
The plan, approved by a vote of 69 to 28, marked one of Mr. Bush’s most hard-won legislative victories in a Democratic-led Congress where he has had little success of late. Both houses, controlled by Democrats, approved what amounted to the biggest restructuring of federal surveillance law in 30 years, giving the government more latitude to eavesdrop on targets abroad and at home who are suspected of links to terrorism.
The issue put Senator Barack Obama of Illinois, the presumptive Democratic nominee, in a particularly precarious spot. After long opposing the idea of immunity for the phone companies in the wiretapping operation, he voted for the plan on Wednesday. His reversal last month angered many of his most ardent supporters, who organized an unsuccessful drive to get him to reverse his position once again. And it came to symbolize what civil liberties advocates saw as “capitulation” by Democratic leaders to political pressure from the White House in an election year.
Senator Hillary Rodham Clinton of New York, who was Mr. Obama’s rival for the Democratic presidential nomination, voted against the bill. read more »
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