Tuesday, February 11, 2014

The Day We Fight Back Against Mass Surveillance

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- First Amendment, U.S. Constitution 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Fourth Amendment, U.S. Constitution

But whatever our differences may have been in the past, we strongly agree that the dragnet collection of millions of Americans’ phone records every day — whether they have any connection at all to terrorism — goes far beyond what Congress envisioned or intended to authorize. 
More important, we agree it must stop.
 - Sen. Patrick Leahy (Vt.)  & Rep. Jim Sensenbrenner (Wis.), Co-sponsors of the USA FREEDOM Act (H.R.3361, S. 1599),  The Case for NSA Reform

Today we must fight back against mass, suspicionless surveillance. Today we must protect both our civil liberties and the digital tools connecting us all.

Indiscriminate bulk surveillance programs by the NSA and their allies (detailed below) violate the First and Fourth Amendments of the U.S. Constitution, which protect citizens' right to speak and associate anonymously, guard against unreasonable searches and seizures, and protect their right to privacy.

In addition to individual privacy issues, these surveillance programs are damaging for online businesses like reddit. These programs undermine the basic freedom, innovation, and economic opportunity that the Internet enables.  The potential for a business to be legally and secretly compelled to violate the privacy of both foreign and domestic users casts a pall over any U.S.-based site. In turn, this threatens to place U.S.-based internet companies, one of the most dynamic and booming sectors of our economy, at a global disadvantage.

Fortunately, there are real opportunities for reform, but they need our support. Please consider joining us in taking action today. Together we can push back against powers that seek to observe, collect, and analyze our every digital action. Together, we can make it clear that such behavior is not compatible with democratic governance. Together, if we persist, we will win this fight.

If you're in the U.S., Call Congress today. Dial 202-552-0505 or click here to enter your phone number and have the call tool connect you. Ask your legislators to oppose the FISA Improvements Act (a bill that attempts to legalize bulk data collection of phone records), support the USA Freedom Act (a bill that works to curtail NSA surveillance abuses), and enact protections for non-Americans. Details on these bills and other legislation can be found below.

Here's what you should say:
I'd like Senator/Representative __ to support and co-sponsor H.R. 3361/S. 1599, the USA Freedom Act. I would also like you to oppose S. 1631, the so-called FISA Improvements Act. Moreover, I'd like you to work to prevent the NSA from undermining encryption standards and to protect the privacy rights of non-Americans.
If you're not in the U.S., demand that privacy protections be instituted.

You can also join in one of the offline protests happening today around the world. A partial list is available at thedaywefightback.org/events.

Below are detailed resources on what the NSA is doing, what legislation is out there, and common excuses for NSA surveillance—and how to bust them, courtesy of the EFF.

Please join us in the discussion in the comments here and in /r/thedaywefightback and /r/Stand.

Here’s just some of what we’ve learned, or had confirmed, in 2013:

  • Collecting call records and contact lists
    • The NSA collects virtually every phone call record in the United States—that’s who you call, who calls you, when, for how long, and sometimes where. (Guardian)
    • The NSA "is harvesting hundreds of millions of contact lists from personal e-mail and instant messaging accounts around the world, many of them belonging to Americans." (Washington Post)
  • Collecting data from the fiber-optic backbone of the Internet
    • The NSA is collecting "communications on fiber cables and infrastructure as data flows past," as part of what it calls "upstream" collection, including content and metadata of emails, web activity, chats, social networks, and everything else. (Washington Post)
    • NSA "has secretly broken into the main communications links that connect Yahoo and Google data centers around the world" and has "positioned itself to collect at will from hundreds of millions of user accounts, many of them belonging to Americans." (Washington Post)
  • Collecting email and SMS messages
    • The NSA "is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials". (New York Times)
    • The NSA "is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age." (New York Times and ProPublica)
  • Monitoring people’s porn usage
    • The NSA has "has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches." (Washington Post)
  • Monitoring online gaming communities
    • The NSA and GHCQ spied on online games, including World of Warcraft and Second Life. (ProPublica)
  • So much more
    • The NSA "is secretly piggybacking on the tools that enable Internet advertisers to track consumers, using "cookies" and location data to pinpoint targets for government hacking and to bolster surveillance." (Washington Post)
    • NSA "officers on several occasions have channeled their agency’s enormous eavesdropping power to spy on love interests." (Wall Street Journal)

There are two major bills that U.S. voters need to understand. The first is a bill that works to curtail NSA surveillance abuses. The other is a bill that attempts to legalize bulk data collection of phone records.

Note that there is no single bill that comprehensively addresses all the problems of NSA surveillance overreach. That’s why it’s important to see the current legislative proposals as a floor, not as a ceiling, and to continue to push for more reforms and privacy-protective amendments.

The USA Freedom Act (S. 1599) is a bipartisan bill introduced by Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI).

If passed, this bill would be a substantial improvement to America’s laws regarding mass surveillance. It brings new levels of transparency to the FISA court, introduces a special advocate to champion civil liberties in the FISA court, and appears to create new statutory limits on mass surveillance by the NSA.

However, this bill is a floor, not a ceiling. The bill only touches on a few of the issues surrounding the NSA’s invasive and unconstitutional surveillance. There are a variety of improvements that can and should be made to ensure the bill effectively reforms NSA surveillance and to ensure the law is less susceptible to being undermined by aggressive legal arguments in the FISA court or elsewhere. In particular, the bill should clarify in plain language that bulk surveillance is illegal and the bill should also prevent the FBI from issuing National Security Letters without prior review by a judge. The bill should also include language to stop the NSA from undermining international encryption standards, and it should have stronger language to protect the privacy of people outside of the United States.

That’s why it’s important to see the USA FREEDOM Act as one step in the right direction, but with many more steps that need to follow.

Additional resources:

On the other hand, the FISA Improvements Act is a bill written by the intelligence community and Sen. Dianne Feinstein (D-CA). It is designed to codify the controversial bulk telephone records surveillance program of the NSA.

If the FISA Improvements Act (S. 1631) were to pass, the NSA would continue to collect telephone records of hundreds of millions of Americans not suspected of any crime. The bill also seeks to permit the NSA to restart the bulk collection of Internet communication records—an extremely invasive, secret program the government attempted under dubious legal ground but abandoned because it wasn't effective.

Other resources:
  • A coalition letter of 54 civil liberties and public interest groups opposing the FISA Improvements Act
  • The ACLU’s blog post on the FISA Improvements Act
  • EFF’s alert about the FISA Improvements Act

What’s missing?

Much more work needs to done as these two bills only touch on a few of the numerous issues with the NSA’s activities. The bills don’t address problems like NSA efforts to sabotage encryption standards, they don’t effectively tackle the issue of collecting information on people outside of the United States, and they don’t address the authority that the government is supposedly using to tap the data links between service provider data centers, such as those owned by Google and Yahoo.

The bills also don’t address a key issue that the government uses to inhibit lawsuits contesting the spying: excessive secrecy. For instance, it won't deal with the major over-classification problems or the state secrets privilege, the latter of which is used aggressively to prevent litigation from getting to a court decision on whether the spying is unconstitutional.

These two bills also leave out a clause appearing in Sen. Ron Wyden's bill, which provides important guidelines to obtain standing in legal cases against spying.

That’s why Internet activists are advocating to stop the FISA Improvements Act, promote the USA FREEDOM Act, and push for substantial reforms beyond what is currently in the USA FREEDOM Act.

To check out all of the other bills proposed by Congress, please check out links like, https://scout.sunlightfoundation.com/user/eff/nsa-spying-reform.

Common Excuses for NSA Surveillance—and How to Bust Them

courtesy of EFF

I have nothing to hide from the government, so why should I worry?

There are a few ways to respond to this, depending on what you think will work best for the person raising the question.
  • Point out how mass surveillance leaves you at the mercy of not only the NSA, but also the DEA, the FBI and even the IRS. We know that the government claims that any evidence of a “crime” can be sent to the appropriate law enforcement agencies.
  • Tell them that, even if you don’t think you have something to hide, it’s possible the government thinks you do, or can create some concern about you (or your friends or loved ones). There are so many laws and regulations on the books, Rep. Jim Sensenbrenner said the Congressional Research Service did not have the resources to count them all.  One legal expert has argued that the average person likely commits three felonies a day without ever realizing. So, you may be technically breaking a law you have no idea about.
  • Emphasize that we all benefit from a system that allows privacy. For example, when journalists can speak to sources without the specter of surveillance it helps fuel investigative journalism and the free flow of information. This is not just a hypothetical—the Department of Justice subpoenaed the phone records of Associated Press journalists in an effort to track down government whistleblowers. And it’s not just journalists. Activists, political organizers, lawyers, individuals conducting sensitive research, businesses that want to keep their strategies confidential, and many others rely on secure, private, surveillance-free communication.

Isn’t the NSA using the mass spying to stop terrorists?

Even the NSA cannot point to a single terrorist attack they’ve stopped using the Patriot Act phone surveillance program that sweeps up virtually every phone record in the United States. They’ve thrown out many numbers claiming that the information was helpful in some capacity, including repeatedly claiming that it thwarted some 54 attacks, but those numbers have been thoroughly debunked.

One example the NSA points to is known as the “Zazi case.” However, in that case, the Associated Press reported that the government could have easily stopped the plot without the NSA program, under authorities that comply with the Constitution. Sens. Ron Wyden and Mark Udall have been saying this for a long time. Intelligence officials also cite a case in which the telephone records program reportedly helped identify a Somali man in San Diego who sent several thousand dollars to al-Shabaab, a militant group in East Africa. However, this case never involved a terrorist plot, nor did it involve a direct threat to U.S. national security. An independent oversight board found no evidence that mass collection of telephone records was useful in the investigation.

That’s the point here: we can stop terrorists with law enforcement authorities that this country has been using for decades. We don’t need to upend the Constitution to keep the nation safe.

The government will not abuse its power.

Some people believe that the government will never abuse its power, especially when the party they support is in office.  You should remind these people that the government has a long history of overstretching its surveillance powers and using that information to try to blackmail people. Examples of this include the NSA spying on Martin Luther King Jr., Muhammad Ali, and even some sitting senators in the 1960s. Imagine how Sen. Joe McCarthy’s investigations might have gone if he had access to this kind of spying.

We already have evidence of abuse of power. We know that the NSA analysts were using their surveillance powers to track their ex-wives and husbands, and other love interests. They even had a name for it, LOVEINT.  The FISA court has also cited the NSA for violating or ignoring court orders for years at a time. And those are just self-reported abuses. An independent investigation might reveal even more.

Allowing mass spying is patriotic.

Stopping untargeted seizure of information is one of the key reasons we fought the War of Independence and drafted the Fourth Amendment.  During colonial times, the "crime" was tax evasion—remember the Boston Tea Party?  The British crown issued Writs of Assistance, which were general warrants that allowed the British authorities to search through anyone’s papers in order to find those who were skirting the taxes.  American patriot James Otis Jr. argued against the “hated writs” but lost his case in the British courts.  John Adams noted that from that case, “the child independence was born.”  

Since that time, warrants have had to specify the persons and places searched. Mass surveillance by the NSA does neither.  In short, one of our country’s founding principles is the prohibition on mass searches and seizures.

Kids today (or my friends) post everything they do on Facebook or Twitter, why should we care if the government can see too?

What people choose to put on Facebook or Twitter (or Instagram or Tumblr or some other service) is almost always curated.  People put the best or sometimes the worst things that happen to them online, but studies show they still keep things private, and restrict the audience for other information.  A new poll shows young people may even be more privacy conscious than older adults.

We all know someone whose Facebook feed continued to show happy pictures even as they went through a terrible breakup or divorce.  The point of privacy is control over the information that is available about you. Some people choose to share more, some choose to share less, but nearly everyone wants the power to pick and choose what information is available about them to their friends and to strangers, like future employers or NSA agents.

Google and Facebook have my information, so why shouldn’t the NSA?

There are many privacy problems with how the giant Internet companies gather and use so much of your personal data. However, Google and Facebook do not have the power to arrest you and, unlike government surveillance, there are other choices for communication tools. For example, you can use DuckDuckGo instead of Google search.

Remember: while we may not like how companies collect a lot of our information, they are not under the same requirement to follow the Fourth Amendment. We need to protect the private information held by companies too, but the Constitution provides a foundation that always protects our communications from the prying eyes of government.

It’s just metadata, so why should I care?
For the mass phone record collection program, the NSA has said it is not “listening in” to telephone calls.  Instead they are collecting a record of everyone you call, who calls you, when you’re on the phone, the length of your phone call, and at times, even your location.

This "metadata" can be as invasive as the content of your conversations. It can reveal your religious and political views, who you are dating (and when you break up), who your spouse and children are, your movements, and even information your closest friends and family don’t know, such as medical conditions.

Additionally, the government is getting more than just metadata. We also know the government has obtained online content, including email, under separate programs, and used the data based on a guess that you are 51 percent likely to be foreign, by scanning large a portion of the total number of emails entering and exiting the United States. Metadata is only a part of the government spying programs.
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