Surveillance Under the USA/PATRIOT Act

Courtesy of the American Civil Liberties Union


What is the “USA/Patriot” Act?

Just six weeks after the September 11 attacks, a panicked Congress passed the “USA/Patriot Act,” an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.

Why Congress passed the Patriot Act

Most of the changes to surveillance law made by the Patriot Act were part of a longstanding law enforcement wish list that had been previously rejected by Congress, in some cases repeatedly.  Congress reversed course because it was bullied into it by the Bush Administration in the frightening weeks after the September 11 attack.

The Senate version of the Patriot Act, which closely resembled the legislation requested by Attorney General John Ashcroft, was sent straight to the floor with no discussion, debate, or hearings.  Many Senators complained that they had little chance to read it, much less analyze it, before having to vote.  In the House, hearings were held, and a carefully constructed compromise bill emerged from the Judiciary Committee. But then, with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version.  Neither discussion nor amendments were permitted, and once again members barely had time to read the thick bill before they were forced to cast an up-or-down vote on it.  The Bush Administration implied that members who voted against it would be blamed for any further attacks – a powerful threat at a time when the nation was expecting a second attack to come any moment and when reports of new anthrax letters were appearing daily.

Congress and the Administration acted without any careful or systematic effort to determine whether weaknesses in our surveillance laws had contributed to the attacks, or whether the changes they were making would help prevent further attacks.  Indeed, many of the act’s provisions have nothing at all to do with terrorism.

The Patriot Act increases the government’s power to spy in four areas

The Patriot Act increases the governments surveillance powers in four areas:

  1. Records searches.  It expands the government’s ability to look at records on an individual’s activity being held by a third parties. (Section 215)
  2. Secret searches.  It expands the government’s ability to search private property without notice to the owner. (Section 213)
  3. Intelligence searches.  It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).
  4. “Trap and trace” searches.  It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content (Section 214).

1.  Expanded access to personal records held by third parties

One of the most significant provisions of the Patriot Act makes it far easier for the authorities to gain access to records of citizens’ activities being held by a third party.  At a time when computerization is leading to the creation of more and more such records, Section 215 of the Patriot Act allows the FBI to force anyone at all – including doctors, libraries, bookstores, universities, and Internet service providers – to turn over records on their clients or customers.

Unchecked power
The result is unchecked government power to rifle through individuals’ financial records, medical histories, Internet usage, bookstore purchases, library usage, travel patterns, or any other activity that leaves a record.  Making matters worse:

  • The government no longer has to show evidence that the subjects of search orders are an “agent of a foreign power,” a requirement that previously protected Americans against abuse of this authority.
  • The FBI does not even have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for “probable cause” that is listed in the Fourth Amendment to the Constitution.  All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation.
  • Judicial oversight of these new powers is essentially non-existent.  The government must only certify to a judge – with no need for evidence or proof – that such a search meets the statute’s broad criteria, and the judge does not even have the authority to reject the application.
  • Surveillance orders can be based in part on a person’s First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written.
  • A person or organization forced to turn over records is prohibited from disclosing the search to anyone.  As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government.  That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches. 
The law before the Patriot Act The law under the Patriot Act
When can the Patriot Act be used? To gather foreign intelligence or investigate international terrorism To gather foreign intelligence or protect against international terrorism
What can the FBI demand be turned over?  “records” “any tangible things (including books, records, papers, documents, and other items)”
Who can they demand information about? Only people who the FBI has evidence are an “agent of a foreign power” Anyone
Who can they demand it from? Only common carriers, public accommodation facilities, physical storage facilities, or vehicle rental facilities Any entity (including bookstores and libraries)


Why the Patriot Act’s expansion of records searches is unconstitutional
Section 215 of the Patriot Act violates the Constitution in several ways.  It:

  • Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
  • Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
  • Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
  • Violates the Fourth Amendment by failing to provide notice – even after the fact – to persons whose privacy has been compromised.  Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.

2. More secret searches

For centuries, common law has required that the government can’t go into your property without telling you, and must therefore give you notice before it executes a search.   That “knock and announce” principle has long been recognized as a part of the Fourth Amendment to the Constitution.

The Patriot Act, however, unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed.  This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property – and not tell them until later.

Notice is a crucial check on the government’s power because it forces the authorities to operate in the open, and allows the subject of searches to protect their Fourth Amendment rights.  For example, it allows them to point out irregularities in a warrant, such as the fact that the police are at the wrong address, or that the scope of the warrant is being exceeded (for example, by rifling through dresser drawers in a search for a stolen car).  Search warrants often contain limits on what may be searched, but when the searching officers have complete and unsupervised discretion over a search, a property owner cannot defend his or her rights.

Finally, this new “sneak and peek” power can be applied as part of normal criminal investigations; it has nothing to do with fighting terrorism or collecting foreign intelligence.

3. Expansion of the intelligence exception in wiretap law

Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.

A 1978 law called the Foreign Intelligence Surveillance Act (FISA) created an exception to the Fourth Amendment’s requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence.  The rationale was that since the search was not conducted for the purpose of gathering evidence to put someone on trial, the standards could be loosened.  In a stark demonstration of why it can be dangerous to create exceptions to fundamental rights, however, the Patriot Act expanded this once-narrow exception to cover wiretaps and searches that DO collect evidence for regular domestic criminal cases.  FISA previously allowed searches only if the primary purpose was to gather foreign intelligence.  But the Patriot Act changes the law to allow searches when “a significant purpose” is intelligence.  That lets the government circumvent the Constitution’s probable cause requirement even when its main goal is ordinary law enforcement.

The eagerness of many in law enforcement to dispense with the requirements of the Fourth Amendment was revealed in August 2002 by the secret court that oversees domestic intelligence spying (the “FISA Court”).  Making public one of its opinions for the first time in history, the court revealed that it had rejected an attempt by the Bush Administration to allow criminal prosecutors to use intelligence warrants to evade the Fourth Amendment entirely.  The court also noted that agents applying for warrants had regularly filed false and misleading information.  That opinion is now on appeal. [link to FISA page]

4. Expansion of the “pen register” exception in wiretap law

Another exception to the normal requirement for probable cause in wiretap law is also expanded by the Patriot Act.  Years ago, when the law governing telephone wiretaps was written, a distinction was created between two types of surveillance.  The first allows surveillance of the content or meaning of a communication, and the second only allows monitoring of the transactional or addressing information attached to a communication. It is like the difference between reading the address printed on the outside of a letter, and reading the letter inside, or listening to a phone conversation and merely recording the phone numbers dialed and received.

Wiretaps limited to transactional or addressing information are known as “Pen register/trap and trace” searches (for the devices that were used on telephones to collect telephone numbers).  The requirements for getting a PR/TT warrant are essentially non-existent:  the FBI need not show probable cause or even reasonable suspicion of criminal activity.  It must only certify to a judge – without having to prove it – that such a warrant would be “relevant” to an ongoing criminal investigation. And the judge does not even have the authority to reject the application.

The Patriot Act broadens the pen register exception in two ways:

“Nationwide” pen register warrants
Under the Patriot Act PR/TT orders issued by a judge are no longer valid only in that judge’s jurisdiction, but can be made valid anywhere in the United States.  This “nationwide service” further marginalizes the role of the judiciary, because a judge cannot meaningfully monitor the extent to which his or her order is being used.  In addition, this provision authorizes the equivalent of a blank warrant: the court issues the order, and the law enforcement agent fills in the places to be searched. That is a direct violation of the Fourth Amendment’s explicit requirement that warrants be written “particularly describing the place to be searched.”

Pen register searches applied to the Internet
The Patriot Act applies the distinction between transactional and content-oriented wiretaps to the Internet. The problem is that it takes the weak standards for access to transactional data and applies them to communications that are far more than addresses.  On an e-mail message, for example, law enforcement has interpreted the “header” of a message to be transactional information accessible with a PR/TT warrant.  But in addition to routing information, e-mail headers include the subject line, which is part of the substance of a communication – on a letter, for example, it would clearly be inside the envelope.

The government also argues that the transactional data for Web surfing is a list of the URLs or Web site addresses that a person visits.  For example, it might record the fact that they visited “www.aclu.org” at 1:15 in the afternoon, and then skipped over to “www.fbi.gov” at 1:30.  This claim that URLs are just addressing data breaks down in two different ways:

  • Web addresses are rich and revealing content.  The URLs or “addresses” of the Web pages we read are not really addresses, they are the titles of documents that we download from the Internet.  When we “visit” a Web page what we are really doing is downloading that page from the Internet onto our computer, where it is displayed.  Therefore, the list of URLs that we visit during a Web session is really a list of the documents we have downloaded – no different from a list of electronic books we might have purchased online.  That is much richer information than a simple list of the people we have communicated with; it is intimate information that reveals who we are and what we are thinking about – much more like the content of a phone call than the number dialed.  After all, it is often said that reading is a “conversation” with the author.
  • Web addresses contain communications sent by a surfer.  URLs themselves often have content embedded within them.  A search on the Google search engine, for example, creates a page with a custom-generated URL that contains material that is clearly private content, such as:

http://www.google.com/search?hl=en&lr=&ie=UTF-8&oe=UTF-8&q=sexual+orientation

Similarly, if I fill out an online form – to purchase goods or register my preferences, for example – those products and preferences will often be identified in the resulting URL.

The erosion of accountability

Attempts to find out how the new surveillance powers created by the Patriot Act were implemented during their first year were in vain.  In June 2002 the House Judiciary Committee demanded that the Department of Justice answer questions about how it was using its new authority.  The Bush/Ashcroft Justice Department essentially refused to describe how it was implementing the law; it left numerous substantial questions unanswered, and classified others without justification.  In short, not only has the Bush Administration undermined judicial oversight of government spying on citizens by pushing the Patriot Act into law, but it is also undermining another crucial check and balance on surveillance powers: accountability to Congress and the public. [cite to FOIA page]

Non-surveillance provisions

Although this fact sheet focuses on the direct surveillance provisions of the Patriot Act, citizens should be aware that the act also contains a number of other provisions.  The Act:

  • Puts CIA back in business of spying on Americans. The Patriot Act gives the Director of Central Intelligence the power to identify domestic intelligence requirements.  That opens the door to the same abuses that took place in the 1970s and before, when the CIA engaged in widespread spying on protest groups and other Americans.
  • Creates a new crime of “domestic terrorism.” The Patriot Act transforms protesters into terrorists if they engage in conduct that “involves acts dangerous to human life” to “influence the policy of a government by intimidation or coercion.”  How long will it be before an ambitious or politically motivated prosecutor uses the statute to charge members of controversial activist groups like Operation Rescue or Greenpeace with terrorism?  Under the Patriot Act, providing lodging or assistance to such “terrorists” exposes a person to surveillance or prosecution.  Furthermore, the law gives the attorney general and the secretary of state the power to detain or deport any non-citizen who belongs to or donates money to one of these broadly defined “domestic terrorist” groups.
  • Allows for the indefinite detention of non-citizens.  The Patriot Act gives the attorney general unprecedented new power to determine the fate of immigrants.  The attorney general can order detention based on a certification that he or she has “reasonable grounds to believe” a non-citizen endangers national security.  Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.

Sources

Thank you to the ACLU for taking a stand for our civil liberties!


 

In Revolution,

Paradise
Virginia NOW
Communications Vice President
communicationsvp@vanow.org

NSA Update: “Collect it all.”  

Some restrictions do apply.

About six months ago, I posted a long, long piece on the NSA and asked VA NOW members to contact their state and federal representatives to let them know that life in a surveillance state is not an American life. Since then, a few, little things, have changed for the better. However, that surveillance state is still intact.NSA Yes We Scan

 All oppressive authorities— political, religious, societal, parental— rely on this vital truth, using it as a principal tool to enforce orthodoxies, compel adherence, and quash dissent. It is in their interest to convey that nothing their subjects do will escape the knowledge of the authorities. Far more effectively than a police force, the deprivation of privacy will crush any temptation to deviate from rules and norms.*

Feminist activists do a great deal of dissenting and deviating. We dissent from the religious and culturally conservative agenda that is the current loudest defense of the age-old patriarchy and its values. We dissent from its enforcer, the rape culture. We dissent from those elements of capitalism that exhaust workers and families. We dissent from the classist assumption that basic good health is the province of the wealthy, and that the rest of us can just keep eating our corn-syrup infused everything, or just soda and chips. And many, many of us dissent vigorously from our government’s neo-conservative foreign policy, our sly expansion of empire, our
adventurous wars, and our combination of universal surveillance and extra-judicial killing of (anyone) American citizens. We dissent from a government that can, effectively, revoke our citizenship and maroon us in a no-woman’s land called Enemy Combatant from which country there is no known return.

Which means that, as feminists, we have a problem with the National Security Agency (and its partner agencies of HLS and cooperating internet companies) having the ability and the permission to observe us in ways that make our political associations and intentions manifestly clear before we even manifest them. This is what the collection of your meta-data means. With your meta-data, the NSA can tell who you called, when, and from all that figure out a lot about you.

 Listening in on a woman calling an abortion clinic might reveal nothing more than someone confirming an appointment with a generic-sounding establishment (“East Side Clinic” or “Dr. Jones’s office”). But the metadata would show far more than that: it would reveal the identity of those who were called. The same is true of calls to a dating service, a gay and lesbian center, a drug addiction clinic, an HIV specialist, or a suicide hotline. Metadata would likewise unmask a conversation between a human rights activist and an informant in a repressive regime, or a confidential source calling a journalist to reveal high-level wrongdoing.+

History has demonstrated again and again that just knowing that you live in a state that can record your life in this way, and threaten you with loss of citizen protections, cows most of the population into stupefied obedience and silences the most imaginative contributions to progress and human dignity. This kind of surveillance works, and works well, even if they never look at you. You begin to live and write and think as if they are looking at you, and you don’t want to be in that depth of trouble. Chapter 4 of No Place to Hide, from which I have been quoting, deals with this history, the methods of surveillance, and the normal psychological and behavioral responses humans have to them. They are dramatic.

 A prime justification for surveillance— that it’s for the benefit of the population— relies on projecting a view of the world that divides citizens into categories of good people and bad people. In that view, the authorities use their surveillance powers only against bad people, those who are “doing something wrong,” and only they have anything to fear from the invasion of their privacy. This is an old tactic. In a 1969 Time magazine article about Americans’ growing concerns over the US government’s surveillance powers, Nixon’s attorney general, John Mitchell , assured readers that “any citizen of the United States who is not involved in some illegal activity has nothing to fear whatsoever.” **

Given the intense surveillance of civil rights and anti-war activists, we know that to have been a dead lie.

So, hurray!, the NSA has been ordered by Congress to stop collecting meta-data of phone calls made by and to US citizens. It’s the law.  This is a worthy revision to the powers granted by the PARIOT Act.

So it’s something, but it’s really nothing.

The UK newspaper, The Guardian (which has been challenging over-bearing governments for over 200 years), publishes most of the best work on the NSA because Glen Greenwald was a reporter with them when Edward Snowden contacted him. Two recent articles clarify the state of the surveillance state.

 By a substantial and bipartisan margin, 293 to 121, representatives moved to ban the NSA from searching warrantlessly through its troves of ostensibly foreign communications content for Americans’ data, the so-called “backdoor search” provision revealed in August by the Guardian thanks to leaks from Edward Snowden. ++nsa_inside

So, the NSA can’t look right at your meta-data, nor can it look at you just because you know someone who lives in Libiya.

But, it can still do even worse than that.

 But exactly one year on, the NSA’s greatest wound so far has been its PR difficulties. The agency, under public pressure, has divested itself of exactly one activity, the bulk collection of US phone data. Yet while the NSA will not itself continue to gather the data directly, the major post-Snowden legislative fix grants the agency wide berth in accessing and searching large volumes of phone records, and even wider latitude in collecting other kinds of data.

There are no other mandated reforms. President Obama in January added restrictions on the dissemination of non-Americans’ “personal information“, but that has not been codified in law. The coalition of large internet firms demanding greater safeguards around their customers’ email, browsing and search histories have received nothing from the government for their effort. A recent move to block the NSA from undermining commercial encryption and amassing a library of software vulnerabilities never received a legislative hearing. (Obama, in defiance of a government privacy board, permits the NSA to exploit some software flaws for national security purposes.) ***

The provisions that force software and internet companies to insert backdoors in their encryption and security systems (this includes your banking and health records), that even infiltrates anonymizers like Tor, yeah that’s still totally intact. NSA can still sneak around back that way, and with much less restriction than has recently been applied to your cell phone. These backdoors make your computer, and your bank, and our whole national security apparatus MORE VULNERABLE to malicious hackers because weakened encryption is weakened encryption. More deliberately, the NSA was aware of the Heartbleed bug, and used it to assist its own hacking operations for a couple of years.

You really do have to wonder about the ethical code driving this organization: collect it all, by any means necessary.

It’s change without change.

The NSA is still doing all manner of bulk surveillance of whole national populations. More the rule for over-riding this new restriction is as low as “reasonable suspicion” which is nothing near as strong as the “probable cause” that comes to mind when we think of “search and seizure.” As Greenwald puts it in No Place to Hide, let’s say your pizza deliverer is new immigrant to the US from a nation that harbors, or just can’t kick out, known terrorist groups or radical clerics. Say his mosque in the US is giving money to Boko Haram, but he doesn’t know that, and you don’t know that, and the NSA does. But, he gets lost on the way to your house and calls you from his cell phone for directions. Boom. You are now, and possibly forever, captured in the two-degrees net, the collection system just automatically logging your call activity for the foreseeable future. There is almost no way for you, innocent citizen, to know which of your business or social interactions might get you swept up in the data dragnet.

And, if any of that pattern is interpreted by an algorithm or a human to constitute “reasonable suspicion” that you are up to some kind of dissent/no-good, a warrant can be gained that allows the NSA to put a “tap” on your phones, your computer, and your computer’s or phone’s camera and microphones and use all that to observe you whether you are using the machines or not, and whether you turn the machines on or not. The NSA can – I am not making this up – turn your cameras on and watch and listen to you whenever they like once they have that warrant. The PowerPoint slides in Greenwald’s chapter 3 are fascinating.

But, you know, not to worry really. BECAUSE IT DOESN’T EVEN WORK (as a method of terror prevention, as advertised). CBS DC reported in January 2014 on a study by the New America Foundation that found:

 … the bulk collection methods used by the NSA under Section 215 of the Patriot Act appear to have played an identifiable role in, at most, 1.8 percent of the terrorism investigations.

 “Surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism and only the most marginal of impacts on preventing terrorist-related activity, such as fundraising for a terrorist group,” reads the report.

Spy-pus

NROL-39 is a surveillance satellite.

The only result toward which this kind of surveillance is effective is to coerce as many people (on Earth) as possible to leave the status quo and the agendas of the elite and power    roll along without our pesky interference. So, Virginia NOW is asking you to keep these issues in mind. Check in with The Guardian from time to time. Their US edition has  devoted a whole department to the NSA. The Atlantic and Salon have also done some excellent original reporting on issues of security and surveillance.

We also ask that you consider, again, writing to your representatives. You can find their contact information on our Represent page (click here, scroll down). Writing your own letter, in your own words, is the most effective way to get the staff’s attention and get your opinion counted.

Only imagine this: a future in which a conservative as tenacious and aggressive and paranoid as Representative Issa or J. Edgar Hoover is the POTUS, and she or he decides that,  say, pro-choice organizations need to be observed more closely because liberals are notoriously tolerant of Muslims. Sadly, that is the level of reasoning many conservatives display lately. The level of reasoning that had the FBI watching Ernest Hemingway, a surveillance program that is now seen as helping to drive the Nobel Prize winner to suicide in 1969. Now imagine that a largely conservative Intelligence Committee agrees with that POTUS. Is that impossible? No, not at all. Is it the most American thing in the world to assure ourselves and future generations that it does not happen? Yes, yes it is.

Just this week, the Supreme Court ruled 9-0 that the local police need a real, written, signed warrant to search your cell phone in the event of your arrest or suspicion. This decision, now this might eventually have some meaningful impact on surveillance. But, that is yet to be seen.

Feminism and feminists do mean to change the world in deep and permanent ways. The State is not fond of that idea, and will use both surveillance and force (as we saw with Occupy) to prevent it. Act up. Speak out.

Carry on, people!

Dr. Simone Roberts

Web Editor / Historian

Virginia NOW

 

Sources

*Greenwald, Glenn. No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Kindle Locations 2346-2349). Henry Holt and Co.. Kindle Edition.

+Greenwald, Glenn. No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Kindle Locations 2039-2043). Henry Holt and Co.. Kindle Edition.

**Greenwald, Glenn. No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (Kindle Locations 2492-2498). Henry Holt and Co.. Kindle Edition.

++ Ackerman, Spencer. House of Representatives moves to ban NSA’s ‘backdoor search’ provision TheGuardian.com, Friday 20 June 2014.

*** Ackerman, Spencer. Edward Snowden, a year on: reformers frustrated as NSA preserves its power.TheGuardian.com, Thursday 5 June 2014.

Virginia NOW Wants You to Help Rein in the NSA

Simone Roberts and Paradise Kendra

Why should a women’s organization work on surveillance issues?

We believe that women and women’s organizations have several priority interests in Spy-pusrestricting NSA surveillance of US citizens. If the following concerns seem out-sized to you, please read the sources in the Background section below.

 1.       Intelligence gathered through the NSA’s methods could potentially be used by the FBI and local law enforcement to interfere with or prevent rallies, protests, and acts of civil disobedience organized by VA NOW and similar groups.  (First Amendment)

 2.       Women’s medical privacy, in deeply red states like Kansas for instance, could potentially be violated by anti-choice state administrations to learn the identities of women who have had/planned to have abortions. (Fourteenth Amendment)

3.      Stalking. NSA analysts have already been found to be staking past, present, and desired romantic partners. While the NSA has responded to most of these cases appropriately (click), the room for abuse is a real concern. You have to get caught to get punished.

We also have interests in this problem as citizens:

  • current NSA practices NSA continue the erosion of individual/civil liberties begun with the PATRIOT Act

  • dangers of human fallibility in the misinterpretation or abuse of collected data

  • possible observation of or interference with legitimate community and political grassroots organizations in the US

Mostly what we’re worried about is:  Mistakes. It’s a lot of data  (nearly all of it) and you might not even know that you’re four degrees of separation from someone who’s one or two degrees of separation from a person of interest, suspect, or criminal —  but that’s close enough for a mistake to happen because the computers watching us are searching for patterns of connection and relation in addition to red-flag words and phrases.

And, lastly, this is just bad for a republic. Total surveillance and democracy cannot exist together. Both James Madison and Thomas Payne could agree on that.

What’s the difference  between the NSA tracking me and an internet company or advertiser?

Simply put, Google can’t hold you in indefinite detention as a material witness. Reebok can’t accidently arrest you as an unlawful combatant.

That may sound hyperbolic or stark, but think back to all the perfectly innocent citizens who found themselves on the No Fly List by mistake, or worse who were actually detained, and then could not get the mistake corrected. Sometimes, even with the best intentions, security agencies overdo it.

When the NSA makes a mistake — maybe by misunderstanding a conversation you had last year on the phone and don’t remember — the consequences can at the least destroy your reputation. “I’m worried about Jason. He’s so unhappy with the situation, and I think he’s reaching for comforts that are dangerous.” “Well, converting to Islam is not a sign that you’re unhappy or unreasonable.”

The fact is that metadata describes you, your whole life, and your state of mind in shocking detail (click).

          Here’s what we’re asking you to do.

1. Promote campaigns by these two organizations through your social media. These two organizations, in addition to the ACLU, are working to end NSA data dragnets and to bring intelligence efforts back into reasonable and constitutional boundaries:

Demand Progress is a petition campaign site largely interested in internet/activism issues (copyright, surveillance, harassment of whistleblowers, grassroots work).  Here is a sample petition for their anti-NSA campaign (click).

Fight for the Future is a similar organization, duplicating many of the campaigns of Demand Progress, but puts visitors in direct contact with their federal representatives.

2. Do the same thing for the ACLU’s efforts. Their petition is here (click). Details of their suit against the NSA are in this WaPo article.  Their work on this issues is outstanding.

3. Write a letter. Seriously. Petitions are nice and all, but petitions and form emails don’t get nearly the attention that personally written letters and phone calls do. It’s the effort factor. Each phone call and letter is often extrapolated by politicians and their staff to represent many hundreds or a thousand people who agree with you.

You might write your federal representatives to say that you want them to vote for one or both of these bills:

Rep. Rush Holt (D NJ): HR 2818 Surveillance State Repeal Act: Would repeal the PATRIOT Act and prevent the NSA from installing “backdoors” to most internet encryption, thus allowing private citizens to actually protect the data they want to protect, like their bank transactions (click).

Sen. Patrick Leahy (D VT): S 1599 USA Freedom Act: There is no summary of this bill at present, but basically it would end generalized eavesdropping on cell phone communications and the internet dragnet. It would force more careful FISA review.

Contact for VA House Reps                Contact for VA Senators

You might write to your state representatives to ask them to draft legislation for the state that restricts surveillance along the lines of the federal bills, or modeled on legislation being considered in Wisconsin and California, and to a lesser degree in Texas.

Contact for VA State Legislators

In your letter you could ask for the following, in your own words:

  • Demand a clear and limited definition of “national security,” a term that presently means just about anything at all.

  • Limit both foreign and domestic surveillance to legitimate terrorist tracking and triangulation, not surveillance of entire populations or governments.

  • Limit use of encryption backdoors.

  • Limit legal use so that no data collected by NSA can be used in non-terror related criminal or civil cases against US citizens, or as leverage in other actions.

  • Impose immediate loss of security clearance and prosecution of any government official who uses collected data against other citizens for personal, financial, or political gain or influence.

  • Forbid any use of NSA tracking methods to restrict political organizing, action or civil disobedience.

  • Protect whistleblowers from  intimidation and over-prosecution.

  • Include an exoneration clause that assures well-publicized public apologies to citizens if the program targets them and investigations/detentions/arrests follow a mistaken identification of a “potential terrorist.”

It’s kind of a lot to take in, but give it a day or so. Think about how you really feel about Homeland Security and the NSA collecting the record of every electronic thing you do: phone call, email, on-line purchase, Netflix rental, bank transaction, charitable donation, Facebook post, listserv discussion, browsing through Pinterest, your conversations with your Muslim and Middle Eastern friends.

You may want to write a letter broad enough to cover everything, or focused on some key concerns that matter more to you. But write. And, if you want to, send a copy of your letter to info@vanow.org  (subject line: My NSA Letter). We’ll collect and post them on our Facebook page to encourage more action.

BACKGROUND

How dedicated is our security state to gathering every byte of information about all citizens, seemingly everywhere in the world (France, Germany, and Brazil got the most media attention)?

The NSA describes its data collection center as 1.5 million square feet, and will consume 65 megawatts of electricity costing $1 million per month. It’s in Nevada, and the water needed to keep all those servers cool will be about 1.7 million gallons (6500 tons) of water per day — in Nevada (click) and (click). It is meant to store everything, possibly forever. The word “Exabyte” was coined for a memory capacity equal to 100,000 times the total holdings of the Library of Congress. How  much is that?  It’s this much:

The Library of Congress is the largest library in the world, with more than 155.3 million items on approximately 838 miles of bookshelves. The collections include more than 35 million books and other print materials, 3.4 million recordings, 13.6 million photographs, 5.4 million maps, 6.5 million pieces of sheet music and 68 million manuscripts. (click)

Multiplied by 100,000. The facility  is also having some significant technical problems with electrical overloads and failures (and the gods only know what effect that could have on the data accuracy) (click).  The room for error here  goes beyond  mistakes in human interpretation or logarithm design, but includes the random electrical  arc scrambling some data. And given the stakes here, those are unacceptable errors.

Rumors that the report published by the Review Group on Intelligence and Communications Technologies will “roll back” the security state’s powers are hopeful, but false. The recommendations are far more conservative than most civil liberties organizations would like, as summarized in this op-ed by Michael Morell, one of the report’s authors (click).

Who’s resisting besides Edward Snowden and Anonymous?

VA NOW would be joining a trend. Several large tech companies (AOL, Yahoo, Microsoft, Google, Apple, Facebook, Twitter,  and LinkedIn) are insisting on five points of reform for current surveillance laws (click). Though these companies are direct competitors, they have come together to demand these reforms so that the internet, essential to the success of all, becomes a trustworthy space once again.

Lawmakers in some states and in the federal government are trying many avenues to restrict surveillance powers to something that will catch bad actors and let the rest of us enjoy our rights and liberties. Terrorists are criminals, they behave like any kind of criminal, and standard forensic procedures can catch them.

Some leading intellectuals and writers are letting their voices be heard. Five hundred writers, from many nations, have signed a public letter demanding a “digital bill of rights” be established in the UN. (click)

Your letter would not place you on the fringe, but right in the stream of national and Spy-pusinternational efforts to reign in the NSA. Have you seen the logo for the new spy satellite going into orbit? (click)  No, we did not make that up. You thought we made that up, didn’t you? Nope.

From Wired Magazine: “The legislation has support from Republicans and Democrats in both the House and Senate, and from groups like the American Civil Liberties Union and National Rifle Association. But the USA FREEDOM Act’s passage into law remains uncertain.

“It is time for serious and meaningful reforms so we can restore confidence in our intelligence community,” said Sen. Patrick Leahy, a Democrat from Vermont and one of the bill’s chief sponsors. Today’s proposal is a radical revamp of the Patriot Act, legislation passed in the immediate aftermath of the September 11, 2001 terror attacks. In 2006, lawmakers amended the act to allow the bulk collection program under the disguise of Section 215 of the Patriot Act — which allows the secret Foreign Intelligence Surveillance Court to authorize broad warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies”. (click)

From NYT: “We pay them to spy,” Mr. Holt said. “But if in the process they degrade the security of the encryption we all use, it’s a net national disservice.”

Mr. Holt, whose Surveillance State Repeal Act would eliminate much of the escalation in the government’s spying powers undertaken after the 2001 terrorist attacks, was responding to news reports about N.S.A. documents showing that the agency has spent billions of dollars over the last decade in an effort to defeat or bypass encryption. The reports, by The New York Times, ProPublica and The Guardian, were posted online on Thursday.” (click)

From Reason Magazine: “The USA FREEDOM Act, which aims to rein in the National Security Agency (NSA), has a growing coalition of bipartisan support that includes Rep. Justin Amash (R-Mich.).

The full title—“Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online-Monitoring Act”—is a mouthful. But it aims to do exactly what it says. If passed, the bill could end bulk meta-data collection, require the attorney general to make certain Foreign Intelligence Surveillance (FISA) court decisions public, and allow Internet and telephone companies to disclose some information about FISA court orders they receive. Additionally, it would create a position within the FISA court of a “special advocate” to act “zealous and effective…in defense of civil liberties.” (click)

Freedom and justice for all,
Dr. Simone Roberts
Web Editor / Historian
Virginia NOW

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