Appeals Court Backs EFF Push for Telecom Lobbying Documents Disclosure: Via EFF.org Updates.

San Francisco - Today a federal appeals court rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans. As the court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

The Electronic Frontier Foundation (EFF) has been seeking records detailing the telecoms' campaign for retroactive legal immunity under the Freedom of Information Act (FOIA). Telecom immunity was enacted as part of the FISA Amendments Act of 2008.

"Today's ruling is an important one for government and corporate accountability," said EFF Staff Attorney Marcia Hofmann. "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret." [ Read more ... ]

Court Keeps White House Spy Docs Secret: Via Threat Level.

A federal appellate panel on Tuesday blocked a court order requiring disclosure of e-mail between the White House, Justice Department, National Security Agency and Office of the Director of National Intelligence — communications that paved the way for new spy legislation.

The 2008 messages were a precursor to legislation that year to kill litigation against the nation’s carriers for funneling Americans’ communications to the National Security Agency without warrants.

The decision by the 9th U.S. Circuit Court of Appeals reverses a California judge who ordered disclosure of those e-mails and the names of telco company lobbyists who pushed for the legislation. The Electronic Frontier Foundation, a civil rights group in San Francisco, sought the e-mail and lobbyist information under a Freedom of Information Act claim. [ Read more ... ]

Courts, Congress Shun Addressing Legality of Warrantless Eavesdropping: Via Threat Level.

Heads spun four years ago this weekend, when AT&T was accused of funneling every one of its customers’ electronic communications to the National Security Agency — without warrants.

A Jan. 31, 2006, lawsuit alleged major violations of the Fourth Amendment right to be free from warrantless searches and seizures. Such a sweeping breach seemed far-fetched.

Yet months after the lawsuit was lodged, the Electronic Frontier Foundation produced internal AT&T documents allegedly outlining secret rooms in AT&T offices connected to the NSA, which was siphoning all internet traffic, from e-mails to Voice Over Internet Protocol phone conversations.

But four years and a mountain of court briefs and rulings later, the legal system has never addressed the merits of the allegations — and likely never will. Even Congress has weighed in and passed legislation to prevent the allegations from being heard.

And many — including the former AT&T technician who produced the documents in the case and the EFF — believe the alleged dragnet surveillance program continues unabated today.

“Nothing has stopped the dragnet,” said Cindy Cohn, the EFF’s legal director, whose case had grown to include all of the nation’s leading internet service providers. [ Read more ... ]

Judge Tosses NSA Spy Cases: Via Threat Level.

A federal judge is dismissing lawsuits accusing the government of teaming with the nation’s telcos to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

He noted that the plaintiffs include most every American connected to the internet or to have used a telephone — meaning the lawsuits boil down to a “general grievance” and are barred. The decision came days after a government audit showed the telecom companies and FBI collaborated for four years, between 2003 and 2007, to violate federal wiretapping laws. [ Read more ... ]

Congress takes a bold stand against surveillance abuses: Via Salon: Glenn Greenwald.

Fixating on and condemning abuses of other countries is one of the greatest weapons the U.S. Government wields for distracting attention away from its own transgressions:  like those gossip-obsessed individuals endlessly mucking around in and passing judgment on the personal lives of others as a means of ignoring their own failings:

The San Francisco Chronicle, yesterday:

Few expect Google Inc.'s stare-down with China to usher in a new era of openness across the Asian nation, but some believe -- or hope -- it could pressure the government to improve relations with foreign technology companies. . . . The Obama administration issued statements of support for Google, and members of Congress are pushing to revive a bill banning U.S. tech companies from working with governments that digitally spy on their citizens.

The backfiring of the surveillance state: Via Salon: Glenn Greenwald.

(updated below - Update II)

Every debate over expanded government surveillance power is invariably framed as one of "security v. privacy and civil liberties" -- as though it's a given that increasing the Government's surveillance authorities will "make us safer."  But it has long been clear that the opposite is true.  As numerous experts (such as Rep. Rush Holt) have attempted, with futility, to explain, expanding the scope of raw intelligence data collected by our national security agencies invariably impedes rather than bolsters efforts to detect terrorist plots.  This is true for two reasons:  (1) eliminating strict content limits on what can be surveilled (along with enforcement safeguards, such as judicial warrants) means that government agents spend substantial time scrutinizing and sorting through communications and other information that have nothing to do with terrorism; and (2) increasing the quantity of what is collected makes it more difficult to find information relevant to actual terrorism plots.  As Rep. Holt put it when arguing against the obliteration of FISA safeguards and massive expansion of warrantless eavesdropping power which a bipartisan Congress effectuated last year: [ Read more ... ]

EFF Helps Blogger Subpoenaed by TSA, TSA Backs Down: Via EFF.org Updates.

On December 31, 2009, the Transportation Security Administration backed off on an ill-considered administrative subpoena it issued to trasportation industry blogger, Christopher Elliott. EFF assisted Mr. Elliott in responding to the subpoena.

The subpoena was hand-delivered to Mr. Elliott by a TSA representative on the evening of December 29, 2009. It sought all documents "concerning your receipt of TSA Security Directive 1544-09-06 dated December 25, 2009." The much-criticized directive had been given to hundreds of employees of TSA and the airlines and described some of the passenger-related security measures put into place in the immediate aftermath of the unsuccessful attempted bombing of a Northwest Airlines flight on December 25, 2009. The directive expired on December 30, 2009. Mr. Elliott obtained it in the course of his coverage of the situation and had sought TSA comment before publishing. The subpoena demanded all documents by the close of business on December 31, 2009, just two days after the agent delivered it.

Mr. Elliott’s counsel Anthony Elia, assisted by EFF and others, responded to TSA by objecting to the subpoena both on the grounds that it did not provide a reasonable time for Mr. Elliott to respond and because it improperly sought to require a journalist to reveal his sources and materials. Upon receipt of the objection, TSA first granted an extension to Mr. Elliott, then withdrew the subpoena entirely. [ Read more ... ]

TSA Withdraws Subpoenas Against Bloggers: Via Threat Level.

In the wake of public outcry against the Transportation Security Administration for serving civil subpoenas on two bloggers, the government agency has canceled the legal action and apologized for the strong-arm tactics agents used.

Travel writer and photographer Steven Frischling, who was served with a subpoena by two TSA agents on Tuesday, told Threat Level that he received a phone call Thursday evening from John Drennan, deputy chief counsel for enforcement at TSA, telling him the administration was withdrawing its subpoena.

Frischling was told the TSA would no longer be pursuing the investigation into how he received a security directive that he published on his personal blog, Flying with Fish, on Dec. 27. [ Read more ... ]

Court: Feds Can Hide Alleged Spying on Gitmo Lawyers: Via Threat Level.

A federal appeals court on Wednesday upheld the government’s refusal to admit or deny it has documents related to warrantless eavesdropping on Guantanamo Bay detainees and their lawyers.

In doing so, the 2nd U.S. Circuit Court of Appeals accepted a little-known defense called the Glomar doctrine. The doctrine, the court ruled, allows the National Security Agency to refuse to acknowledge to the lawyers suing under the Freedom of Information Act that there are any documents responsive to allegations their clients had been or are being targeted under the Terrorist Surveillance Program adopted following the 2001 terror attacks.

“Confirming or denying the mere existence of specific records in a general surveillance program would logically be both confirming or denying that the NSA was targeting a specific individual and confirming or denying that the NSA is conducting a general surveillance program,” (.pdf) the New York-based appellate court wrote Wednesday. [ Read more ... ]

Salon Radio: Critical state secrets hearing today: Via Salon: Glenn Greenwald.

(updated below w/transcript - Update II)

[link to recorder fixed]

The case of Mohamed v. Jeppesen -- brought by five victims of Bush's torture/rendition program against the Boeing subsidiary that shipped them to be tortured -- was the Obama DOJ's first test of its commitment to restore basic accountability and the rule of law.  Back in February, it resoundingly failed that test when they demanded that the case be dismissed in its entirety by invoking the same radicalized version of the "state secrets" privilege which the Bush DOJ, to great controversy, repeatedly invoked.  That was the first sign that things would go terribly awry with Obama's rule of law and civil liberties record.  This warped rendition of the "state secrets" doctrine transforms it from a long-standing, simple evidentiary privilege (i.e., this specific document is too sensitive to use in the litigation) into a sweeping, dangerous shield of immunity for government lawbreaking (i.e., courts have no right to review the legality of the crimes we commit in secret). 

The Obama administration now insists that courts must dismiss lawsuits alleging presidential lawbreaking whenever the CIA Director claims the lawsuit would jeopardize state secrets; or, as the ACLU Brief puts it, "torture victims must be denied a day in court based on an Affidavit submitted by their torturers."  The Obama DOJ has gone on to invoke that same Bush-created version of the secrecy theory to demand dismissal of numerous other cases alleging various types of lawbreaking by the Executive Branch. [ Read more ... ]

Lawsuit Challenging Unconstitutional Spying Should Be Reinstated, Says ACLU: Via American Civil Liberties Union.

FISA Amendments Act Must Be Subject To Judicial Review

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The American Civil Liberties Union filed a brief late Wednesday arguing that its lawsuit challenging an unconstitutional government spying law should be reinstated. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls by the millions, without a warrant and without suspicion of any kind.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," said Jameel Jaffer, Director of the ACLU National Security Project. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws." [ Read more ... ]

Report: U.S. Fears Public Scrutiny Would Scuttle IP Treaty Talks — Update: Via Threat Level.

The proposed Anti-Counterfeiting Trade Agreement, or ACTA, has been shrouded in secrecy, and the Bush and the Obama administrations have declared it unsuitable for public debate because divulging its contents could harm America’s “national security.”

A few recent leaks have showed that the unfinished agreement, which is being negotiated largely between the European Union and the United States, is likely to benefit the content industry. At the same time, it might pave the way for international guidelines that could lead to consumers losing their internet accounts if they are believed to be digital copyright scofflaws.

But we now know that the real reason for secrecy, the one suspected all along, was that the United States does not think it could reach an accord with Europe and the nearly dozen other nations if the proposal came under public scrutiny. [ Read more ... ]

The extreme secrecy of the federal courts: Via Salon: Glenn Greenwald.

Once conservatives became embarrassed by their cowardly warnings that we would all be killed if we held a 9/11 trial in New York, they switched to a new argument:  trials in a real court would lead to the disclosure of classified information that would help the Terrorists.  In advancing this claim, they relied on the always-unhinged rantings of National Review's Andy McCarthy -- who has also suggested that Bill Ayers was the real author of Barack Obama's "Dreams from my Father"; attacked his own editors for pointing out the falsehoods of Sarah Palin's "death panel" claims, which McCarthy insisted were true; defended the Birther movement and dissented from NR's editorial rejection of it; and was excoriated by Rich Lowry for claiming that Obama "rather likes tyrants and dislikes America."  This person -- someone who is often too fringe, hysterical and delusional even for National Review -- is the "legal expert" on which the Right is relying to claim that real trials will jeopardize classified information. [ Read more ... ]

Handy Chart Tracks Proposed Amendments to Patriot Act: Via Threat Level.

Confused by all the proposed changes to the Patriot Act ricocheting through the Capitol? The Center for Democracy and Technology (CDT) has put together a handy chart comparing the current law with the various amendments in the House and Senate.

The chart compares proposed amendments (.pdf) to National Security Letters (NSLs) and the so-called “lone wolf” provisions of the Patriot Act. The proposals have only been passed by the judiciary committees, and face further amendments before they hit the full House and Senate for votes.

According to Gregory Nojeim, CDT’s director of project on freedom, security and technology, although neither of the current proposals goes far enough in fixing all of the problems that civil libertarians find in the Patriot Act, they do show improvements. [ Read more ... ]

Salon Radio: Rep. Jerry Nadler on State Secrets Act: Via Salon: Glenn Greenwald.

Last Friday, the House Judiciary Committee, by a vote of 18-12, approved a bill entitled The State Secret Protection Act of 2009, which, if enacted, would be the first law ever to regulate and limit the President's ability to use the "state secrets privilege" to compel the dismissal of lawsuits that allege lawbreaking by executive branch officials.  The bill was first introduced in 2007 in response to the Bush administration's radical abuse and expansion of the privilege, and was re-introduced earlier this year in response to the Obama administration's identical abuses.

The lead House sponsor of the bill is Rep. Jerry Nadler of New York, the Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.  He's my guest today on Salon Radio to discuss why these limits are so imperative, how the Obama DOJ has been abusing the privilege, and why internal, voluntary DOJ safeguards are inadequate.  [ Read more ... ]

A court decision that reflects what type of country the U.S. is: Via Salon: Glenn Greenwald.

It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).  Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal's McGill University, he has lived in Canada since he's 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was "rendered" -- despite his pleas that he would be tortured -- to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I've appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria. [ Read more ... ]

Two Battles Won: PATRIOT Reform AND State Secrets Reform Bills Pass House Committee: Via EFF.org Updates.

After a long two days of legislative battle, the House Judiciary Committee just finished its second day of debate on Chairman Conyers' PATRIOT reform bill, HR 3845 (see our wrap-up of the first day). Thanks in no small part to those of you who used our action alert, the Committee rejected almost all amendments that would have weakened the bill's reforms and voted to recommend the bill to the House floor by a vote of 16 to 10.

Even better, the Committee kept going after it was finished with PATRIOT to consider Representative Nadler's State Secret Protection Act (HR 984), which would reform the state secrets privilege that the government has repeatedly used to try and throw EFF's warrantless wiretapping cases out of court. After an impassioned defense by Mr. Nadler, who described how the government has used the privilege like a "magic incantation" to cover-up wrongdoing and warned that state secrecy "is the greatest threat to liberty at present," the bill passed with even better numbers than the PATRIOT bill, 18 to 12! [ Read more ... ]

House Considers Limiting Patriot Act Spy Powers: Via Threat Level.

Powerful House members are proposing sweeping reforms to U.S. surveillance law that puts them on a collision course with pro-domestic spying legislation in the Senate.

The proposals (.pdf) come as key provisions of the Patriot Act are set to expire at year’s end. The act, hastily adopted six weeks after the 2001 terror attacks, greatly expanded the government’s ability to spy on Americans in the name of national security.

Lawmakers are taking the expiration as an opportunity to revisit a number of surveillance provisions, including elements of the Patriot Act that aren’t set to expire, including a 2008 law that granted legal immunity to phone companies that cooperated with the Bush administration’s warrantless wiretapping of Americans. [ Read more ... ]

Once Again, Government Moves to Delay Release of Telecom Lobbying Documents: Via EFF.org Updates.

This evening, the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on Politico.com, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government's motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. [ Read more ... ]

Special Interests See ‘Classified’ Copyright Treaty; You Can’t: Via Threat Level.

Want to know the language of the ever-transforming proposed Anti-Counterfeiting Trade Agreement?

It’s classified. And, according to the Obama administration, it carries national security implications. According to leaked documents on WikiLeaks, the proposed treaty would require ISPs to terminate repeat copyright scofflaws, criminalize peer-to-peer file sharing, subject iPods to border searches and even interfere with the legitimate sale of brand-name pharmaceutical products.

But as it turns out, the administration has shared the secret treaty’s contents with more than three dozen individuals in the private sector, from the left and the right of the copyright debate. Those individuals include Business Software Alliance attorney Emery Simon, Google copyright czar Bill Patry and president of Public Knowledge Gigi Sohn. [ Read more ... ]

Federal Court Denies Government Attempt to Delay Release of Telecom Records. Again.: Via EFF.org Updates.

Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.

On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government de [ Read more ... ]

NYT: New Obama Policy on State Secrets isn't Enough; Reform by Congress is Needed: Via EFF.org Updates.

Today's New York Times included an excellent editorial on the Obama Adminstration's new policy toward the state secrets privilege. Echoing EFF's disappointment in the new procedures, the editorial explains:

The other day, Attorney General Eric Holder Jr. issued new guidelines for invoking the state secrets privilege in the future. They were a positive step forward, on paper, but did not go nearly far enough. Mr. Holder’s much-anticipated reform plan does not include any shift in the Obama administration’s demand for blanket secrecy in pending cases.

EFF's lawsuit against the government over the National Security Agency's warrantless wiretapping program, Jewel v. NSA, is one of those pending cases. As the editorial continues, [ Read more ... ]

Obama’s Disappointing State Secrets Procedures: Via EFF.org Updates.

After months of internal review, the Obama Administration today announced a new policy on the use of the state secrets privilege. The state secrets privilege traditionally allows the government to withdraw particular pieces of evidence from a court case on the grounds that the evidence would reveal sensitive classified information. Despite this limited purpose, it's been repeatedly misused by the Bush and now Obama administrations to try to throw important litigation out of court, and is badly in need of reform.

Unfortunately, the new policy falls far short of the real reform that's needed. The Obama Administration has essentially added several layers of Executive Branch bureaucracy before the privilege can be asserted. They've promised only to use the privilege in cases where a “significant harm” to national security would result, and promised “not to invoke the privilege for the purpose of concealing government wrongdoing.” [ Read more ... ]

Obama Issues Limits on ‘State Secrets Privilege’: Via Threat Level.

The Obama administration announced new limits Wednesday on the so-called state secrets privilege used by the government to scuttle lawsuits that involve classified information, adding layers of oversight to a power that both the Bush and Obama administration has used to kill off lawsuits challenging anti-terrorism programs.

Under the new guidelines (.pdf) issued by Attorney General Eric Holder, set to take effect October 1, government lawyers will only invoke the privilege when there’s a possibility of “significant harm” to the country, and won’t use it to hide embarrassing or illegal government programs.

The states secrets privilege lets the government tell a judge that a matter in a lawsuit, or the very subject of a lawsuit, is so sensitive that national security trumps justice.  Asserting the privilege all but forces a judge to ban critical evidence or toss an entire case, no matter how egregious the government conduct might have been. [ Read more ... ]

Obama Stands Behind ‘State Secrets’ in Spy Case: Via Threat Level.

SAN FRANCISCO – Hours after the Justice Department announced it would limit its use of the state secrets privilege in new cases, the administration appeared before a federal judge here Wednesday and continued to invoke that defense in a closely watched spy case.

The litigation at issue, now five years old, tests whether a sitting president may bypass Congress and adopt a warrantless surveillance program, as President Bush did in the wake of the 2001 terror attacks.

“We need to protect information concerning the manner and methods by which we seek to detect and prevent a terrorist attack,” Justice Department special counsel Anthony Coppolino said Wednesday while arguing to a federal judge to dismiss the case on the basis of state secrets.

The 5-year-old case, having a tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless Terror Surveillance Program. [ Read more ... ]