Obama Administration Expanded Warrantless Surveillance to Target ‘Malicious Cyber Activity’

Defense Department Photo

Documents from NSA whistleblower Edward Snowden show warrantless surveillance was expanded by President Barack Obama’s administration to target “malicious cyber activity.”

After Congress legalized the warrantless wiretapping with the FISA Amendments Act in 2008, non-US citizens could be targeted abroad. The administration developed a new policy for cybersecurity and took steps that would make the difference between a spy and criminal nearly non-existent.

According to a report from the New York Times and ProPublica, the White House National Security Council decided in May 2009 that “reliance on legal authorities that make theoretical distinctions between armed attacks, terrorism and criminal activity may prove impractical.”

The NSA proposed that the government use the warrantless surveillance program for cybersecurity about the same time.

In May and July 2012, the Justice Department signed off on searches of “cybersignatures” and Internet addresses. The approval was tied to previously granted authority to spy on foreign governments obtained from the Foreign Intelligence Surveillance Court. However, the NSA soon grew frustrated with the limits this imposed on them.

“That limit meant the NSA had to have some evidence for believing that the hackers were working for a specific foreign power,” the report indicates. “That rule, the NSA soon complained, left a ‘huge collection gap against cyberthreats to the nation’ because it is often hard to know exactly who is behind an intrusion, according to an agency newsletter. Different computer intruders can use the same piece of malware, take steps to hide their location or pretend to be someone else.”

Before the year was over, the NSA pressed the secret surveillance court for permission to use the warrantless wiretapping program for “cybersecurity purposes.”

As this happened, the FBI’s authority to target Internet data and use it for its criminal and “national security” investigations expanded.

…[T]he FBI in 2011 had obtained a new kind of wiretap order from the secret surveillance court for cybersecurity investigations, permitting it to target Internet data flowing to or from specific Internet addresses linked to certain governments.

To carry out the orders, the FBI negotiated in 2012 to use the NSA’s system for monitoring Internet traffic crossing “chokepoints operated by U.S. providers through which international communications enter and leave the United States,” according to a 2012 NSA document. The NSA would send the intercepted traffic to the bureau’s “cyberdata repository” in Quantico, Virginia…

The newly claimed authority is but another example of an expansion of executive power the Obama administration arrogated to itself without any public debate whatsoever. (more…)

A Misleading Moment of Celebration for a New Surveillance Program

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This is cross-posted with permission from ExposeFacts.org.

The morning after final passage of the USA Freedom Act, while some foes of mass surveillance were celebrating, Thomas Drake sounded decidedly glum. The new law, he told me, is “a new spy program.” It restarts some of the worst aspects of the Patriot Act and further codifies systematic violations of Fourth Amendment rights.

Later on Wednesday, here in Oslo as part of a “Stand Up For Truth” tour, Drake warned at a public forum that “national security” has become “the new state religion.” Meanwhile, his Twitter messages were calling the USA Freedom Act an “itty-bitty step” — and a “stop/restart kabuki shell game” that “starts w/ restarting bulk collection of phone records.”

That downbeat appraisal of the USA Freedom Act should give pause to its celebrants. Drake is a former senior executive of the National Security Agency — and a whistleblower who endured prosecution and faced decades in prison for daring to speak truthfully about NSA activities. He ran afoul of vindictive authorities because he refused to go along with the NSA’s massive surveillance program after 9/11.

Drake understands how the NSA operates from the highest strategic levels. He notes a telling fact that has gone virtually unacknowledged by anti-surveillance boosters of the USA Freedom Act: “NSA approved.” So, of course, did the top purveyor of mendacious claims about the U.S. government’s surveillance programs — President Obama — who eagerly signed the “USA Freedom” bill into law just hours after the Senate passed it.

(more…)

White House Insists Snowden is Still Guilty of ‘Very Serious Crimes’

Regardless of political developments that may vindicate the actions of NSA whistleblower Edward Snowden, the White House still maintains that he committed “very serious crimes” and should continue to face prosecution in the United States.

White House Press Secretary Joshua Earnest was asked during a press briefing on June 1 about whether it was time to “reassess the persecution” of Snowden. All three branches of government have rejected the use of the Patriot Act to justify bulk data collection by the NSA, a program which Snowden revealed to the public.

“It’s not,” Earnest replied. “The fact is Mr. Snowden committed very serious crimes, and the US government and Department of Justice believe that he should face them.”

“That’s why we believe Mr. Snowden should return to the United States, and he will have the opportunity if he were to return to the United States to make that case in a court of law. But, obviously, our view on this is that he committed and is accused of very serious crimes.”

As a follow-up, Earnest was pressed on the fact that Snowden would not be able to make a public interest or whistleblower defense in court during a trial. He is charged with violating the Espionage Act. The Justice Department prosecutes it as a strict liability crime, which means motive does not matter. If a person causes “national defense” information to be made public without proper authorization, that is enough to convict them of committing a violation of the law.

“Would you be willing to at least talk to him about the circumstances in which you’ve said you’d give him a fair trial?”

Earnest suggested the Justice Department would have to handle something like that. He would not get into how that would play out. But, he added, “There exists mechanisms for whistleblowers to raise concerns about sensitive national security programs.”

“Releasing details of sensitive national security programs on the internet for everyone, including our adversaries, to see is inconsistent with those protocols that are established for protecting whistleblowers.”

Jesselyn Radack, an attorney who has represented Snowden, reacted, “Snowden did not release any documents on the internet. He provided documents to journalists, who used their editorial discretion to decide what was worthy and in the public interest to know.”

It is a “tried and true line,” which President Barack Obama’s administration has “trotted out in Espionage Act cases.” The argument is because terrorists read newspapers there will be grave harm, but it is generally not supported by facts.

When Snowden was at the NSA, he was working as a private contractor. Snowden did not have “proper channels” he could go through because the presidential policy directive put in place for “intelligence officers” excluded contractors. So, it is hard to figure out what “protocols” Earnest was referencing when he made his remarks.

Radack added, “As one of the attorneys representing Snowden, given the recent developments in the courts and Congress, it is clearly time to drop these charges against Mr. Snowden.”

It was not Obama that created this political moment where potential surveillance reforms were debated and senators spoke out against bulk data collection. It was Snowden—and a number of senators recognize this reality.

However, Earnest claimed that Obama should be the one credited with any surveillance reform that passes in Congress.

“To the extent that we’re talking about the president’s legacy, I would suspect that would be a logical conclusion from some historians that the president ended some of these programs that did raise concerns [among] those who prioritize privacy and civil liberties of the American people,” Earnest stated.

“This is consistent with the reforms that the president advocated a year and a half ago. And these are reforms that required the president and his team to expend significant amounts of political capital to achieve over the objection of Republicans.”

Yet, few senators have credited Obama for pushing reform. Politicians in Washington recognize that public opinion, which has been influenced by disclosures from Snowden, is why they are considering changes to policies.

A Pew Research Center poll recently found that few Americans support government holding on to their data in bulk. Only 6% were “very confident” that government can keep records “safe and secure.”

“[Sixty-five percent] of American adults believe there are not adequate limits on the telephone and internet data that the government collects.”

New York Times Pushes False Notion Both Sides of Patriot Act Debate Are Wrong

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An analysis published in the New York Times falsely equates arguments for and against extending provisions of the PATRIOT Act, making it seem as if those against extension are just as wrong as those pushing to preserve government spying powers.

“There is little evidence in the history of the expiring Patriot Act powers to bolster the arguments that either supporters or opponents are making,” according to a description of the analysis written by Charlie Savage.

With the headline, “Reality Checks in Debate Over Surveillance Laws,” it appropriately calls out Republican senators like Tom Cotton, who have claimed a lapse in “this critical tool would lead to attacks.” Savage notes that studies and testimony have both shown that in the program’s existence zero terrorist attacks have been thwarted.

However, in the next paragraphs, Savage casts opponents of extending the provisions as individuals who are comparably wrong:

At the same time, proponents of ending the program say it poses risks to Americans’ private lives, by permitting the government to know who has been calling psychiatrists or political groups, for example. But despite the discovery of technical violations of the rules several years ago, no evidence has emerged that the program has been misused for political or personal gain. As a result, the privacy-minded critics have had to couch their warnings in hypothetical terms.

“Even if we stipulate for purposes of this discussion that no one within the N.S.A. is currently abusing this program for nefarious political purposes,” Senator Rand Paul, who is running for the Republican presidential nomination, said in a filibuster-style floor speech last week, “can we say we are certain that will always be the case? Who is to say what might happen one year from now, two years from now, five years, 10 years or 15 years from now?”

While Savage may consider this to be equal to fear mongering about what will happen if spying powers are curtailed, “privacy-minded” opponents of the PATRIOT Act are not relying on the same hyperbole.

The only example Savage cites is very restrained and calculated. It is based on a concern that history could repeat itself because the country once experienced what it was like to have a domestic security state turned against citizens decades ago when J. Edgar Hoover was FBI director. And, in the example, Paul is making no claims about abuse for personal or political gain that cannot be backed up.

On the contrary, none of the supporters of the Patriot Act spying powers are as measured in their arguments. Not even officials from President Barack Obama’s administration are as level-headed in their rhetoric.

Administration officials have had a reporter from the Times print anonymous statements from them, one which suggests critics are playing “national security Russian roulette.” The administration maintains opponents are being “grossly irresponsible” because they want to have a debate and reform spying powers in a manner that much of the country actually supports.

Furthermore, it is inaccurate—and, at best, misleading—to write in any analysis that there is “no evidence” that “the program has been misused for political or personal gain.” (more…)

With Deadline in Sight, Senate Scrambles on Patriot Act

Sen. Dianne Feinstein pushes new legislation that would criminalize whistleblower activity on national security

By Nadia Prupis

As public outcry against government spying reaches a fever pitch, the U.S. Senate is scrambling to address the USA Patriot Act, key sections of which are currently speeding toward expiration.

President Barack Obama on Tuesday warned the Senate—which is on a weeklong Memorial Day recess—to pass legislation that would renew those provisions, such as Section 215, which are scheduled to sunset on June 1.

“The problem we have now is that those authorities run out at midnight on Sunday,” Obama said. “So I strongly urge the Senate to work through this recess and make sure that they identify a way to get this done.”

The Senate on Friday rejected the legislation, known as the USA Freedom Act, which would have ended the National Security Agency’s (NSA) authority to collect domestic phone records in bulk, but would have renewed Section 215 and other controversial provisions of the Patriot Act which are set to expire next week. The U.S. House passed the USA Freedom Act on May 14.

On Senate Majority Leader Mitch McConnell’s watch, lawmakers are set to reconvene on Sunday, May 31 to vote again on the USA Freedom Act, as well as on another deal proposed—and rejected—last week that would have temporarily extended the Patriot Act.

The Senate will also consider legislation introduced by Sen. Dianne Feinstein (D-Calif.), which would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the U.S.

As Kevin Gosztola writes at Firedoglake, Feinstein’s bill—modeled after the Espionage Act—”would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.”

Observers say that the chances are slim that the Senate will embrace any of those bills after overwhelmingly rejecting two of them so recently—and that’s just what privacy advocates are hoping for.

The USA Freedom Act has gotten a lukewarm reception by digital rights organizations like Fight for the Future and the Electronic Frontier Foundation over what they say are insufficient reforms of the NSA’s spying powers.

Fight for the Future called the Senate’s rejection of the bill on Friday a “historic tactical win against surveillance.”

“Sunsetting the Patriot Act is the biggest win for ending mass surveillance programs,” Tiffiniy Cheng, co-founder of Fight for the Future, a coalition of civil liberties and privacy rights organizations, said at the time. “We are seeing history in the making and it was because the public stood up for our rights to freedom of expression and freedom of association—and there’s no turning back now.”

The Electronic Frontier Foundation explained the setup succinctly last week, with senior staff attorney Lee Tien writing in a blog post that the gridlock is “good news: if the Senate stalemate continues, the mass surveillance of everyone’s phone records will simply expire on June 1.”

“We commend every Senator who voted against reauthorizing the unconstitutional surveillance of millions of law-abiding Americans,” Tien wrote.

Congress should again reject renewing Section 215 on Sunday and instead “turn to addressing other surveillance abuses by the US government, including mass surveillance of the Internet, the secretive and one-sided FISA Court, and the problems of secrecy and over-classification that have created the environment that allowed such spying overreach to flourish,” he continued.

As ACLU legislative counsel Michelle Richardson wrote in an op-ed last Friday, “The question before Congress and the American people now is whether that provision should be renewed. The answer is a clear and resounding no.

“Voting for reauthorization of Section 215 now would not just be a missed opportunity for a serious debate about the role of government surveillance in our democracy; it would be an endorsement of the unconstitutional surveillance programs we already know exist, and a tacit endorsement of those we’re still in the dark about.”

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Senate Effort to Renew NSA Spying Powers Contains Provision to Stop Next Edward Snowden

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Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.

As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)

The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.

A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.

Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.

Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.

A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.

Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.

Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.

Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”

“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”

The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment. (more…)

As Patriot Act Expiration Looms, Critics Hope for Sunset on Mass Surveillance

With a deadline for the USA Patriot Act fast approaching, Congress has little time to decide how to proceed—but the call to ‘sunset’ the law is growing. (Photo: Dan Cook/flickr/cc/with overlay)

‘Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.’

By Nadia Prupis and Deirdre Fulton

With the fate of the USA Patriot Act still hanging in the balance late afternoon Friday—and lawmakers eager to leave Washington, D.C., for Memorial Day barbecues and campaign stops in their home states—the chance to see the sun go down on the controversial spying bill is still on the table.

The debate over the Patriot Act is centered around one of its key provisions, Section 215, which is set to expire on June 1 absent congressional action. The U.S. National Security Agency (NSA) previously relied on Section 215 to justify its mass phone data collection operation, but its expiration would force an end to that program.

With that “sunset” approaching, lawmakers have the chance to reform the Patriot Act, end it altogether, or pass a clean re-authorization that renews all the provisions set to expire in mere days.

Senate Majority Leader Mitch McConnell (R-Ky.) is the most outspoken supporter of a clean re-authorization, arguing that the Patriot Act in its current form is a crucial tool in the so-called “War on Terror.” FBI director James Comey also said this week that it would be a “big problem” to lose the authority that the law bestows on the intelligence agencies.

Adding to the urgency is the Obama administration’s warning that Congress only has until Friday to act on the law, because the government will need time to scale down its phone data program if it is not re-authorized. The House of Representatives has already left for the Memorial Day weekend.

The White House, along with the U.S. House, supports reform legislation called the USA Freedom Act, and warned that “there is no Plan B, these are authorities Congress must legislate.”

Should the Senate fail to pass the reform bill, said White House press secretary Josh Earnest on Friday, there is nothing the president can do to stop the Patriot Act provisions from lapsing.

Of course, that would be just fine with privacy activists and advocacy groups who oppose intrusive government surveillance. At protests held in dozens of cities on Thursday, demonstrators called on Congress to oppose any re-authorization of the Patriot Act and instead let its spying provisions sunset as scheduled on June 1.

“It’s time we came together and let the sun go down on this dark age of government surveillance,” said Fight for the Future campaign director Evan Greer. “Together we will end the Patriot Act, and the sun can rise on a new day filled with freedom and privacy for all.”

Free Press Action Fund government relations manager Sandra Fulton added, “The nationwide sunset vigils have sent a signal to Washington: It’s time we closed this chapter on mass surveillance and restored everyone’s rights to connect and communicate in private.”

However, The Hill reported Friday that “momentum appeared to be on the side of reformers, whose hopes were buoyed by the near certainty that the Senate will either need to pass [the House version of] the USA Freedom Act, or allow three parts of the post-9/11 law to sunset.”

The report went on to say the USA Freedom Act “has the backing of the majority of the Senate—including all Democrats—but it remains unclear whether it has the 60 votes necessary to overcome procedural hurdles during what increasingly looks like a rare Memorial Day weekend session.”

The USA Freedom Act passed the House on May 14 with an overwhelming 338-88 vote. But according to advocacy groups like the Electronic Frontier Foundation, the USA Freedom Act is a “small step instead of a giant leap,” particularly in comparison with previous iterations of the bill, introduced in 2013 and 2014, which offered stronger reforms but failed to progress through Congress.

The Act grants a five-year extension to Section 215.

After the bill passed the House, Tiffiniy Cheng, co-founder of Fight for the Future, warned that the USA Freedom Act would actually “expand the scope of surveillance” by the NSA and others.

“This is a fake privacy bill,” Cheng said. “Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as ‘USA Freedom.’ This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems.”

Opposition to the Patriot Act has grown steadily since whistleblower Edward Snowden in 2013 revealed Section 215’s role in the NSA spying program. The call to let the provision expire only grew after a federal appeals court ruled earlier this month that the agency’s phone surveillance operation is illegal. And as Mike Masnick at Techdirt points out, a Justice Department investigation into the FBI’s use of Section 215, released Thursday, found that the provision has never been particularly useful in anti-terrorism efforts.

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DNI Clapper’s Lawyer Claiming Clapper Lied To Congress Because He ‘Forgot’ About NSA Program

From the Department of you can’t be serious. The top lawyer for Director of National Intelligence James Clapper is making a novel argument as to why Clapper did not technically commit perjury despite saying something he knew to be untrue while testifying under oath before Congress – Clapper somehow “forgot” about a massive and highly controversial secret spying program he oversees. 

Yes, you read that right. The general counsel for the Office of the Director of National Intelligence, Robert Litt, is trying to get his boss out of trouble by claiming that the DNI had some kind of epic brain fart while testifying before Congress. Litt’s explanation is that Clapper “mistakenly” thought he was not running a global dragnet program that was vacuuming up private data from American citizens without a warrant when asked by Senator Wyden in a hearing before the Senate Intelligence Committee if he was doing just that.

Seriously, this is the current explanation.

Director of National Intelligence Jim Clapper wasn’t lying when he wrongly told Congress in 2013 that the government does not “wittingly” collect information about millions of Americans, according to his top lawyer. He just forgot. 

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday. “We all make mistakes.”

Slow clap for Clapper and his intrepid legal team. But just when you thought it could not get any more absurd you remember that Clapper had a completely different explanation for why he lied to Congress just after the Snowden leaks came out. Clapper’s first explanation for lying was not that he made a mistake but that he had strategically looked for the “least untruthful” answer to give without damaging intelligence operations.

So did he forget or did he lie to Congress under oath for what he believed was a good cause?

Obama And Clinton Endorse USA Freedom Act After Court Ruling

In the aftermath of yesterday’s court ruling and the looming June 1st deadline to reauthorize the section of the PATRIOT Act the court ruled illegal, the Democratic Party establishment appears to have shifted somewhat on domestic spying. President Barack Obama, through a White House spokesman, has said he supports the USA Freedom Act – which would reform the phone collection program.

Hillary Clinton also endorsed the NSA reform bill tweeting: “Congress should move ahead now with the USA Freedom Act—a good step forward in ongoing efforts to protect our security & civil liberties.”

One of the USA Freedom Act’s biggest promoters is Congressman Jim Sensenbrenner who helped author the PATRIOT Act. Sensenbrenner has been adamant post-Snowden that the NSA was never given the powers it was using under the bill he helped write. After the court decision Sensenbrenner reaffirmed his view saying that Congress never intended Section 215 to authorize bulk collection of phone records and that “This program is illegal and based on a blatant misinterpretation of the law. It’s time for Congress to pass the USA Freedom Act in order to protect both civil liberties and national security with legally authorized surveillance.”

But the USA Freedom Act is by no means fundamental reform. While the bill would reform NSA’s bulk collection practices domestically it would leave in place the massive spying apparatus along with the unrestricted information warfare overseas that will inevitably lead to the agency vacuuming up US citizen’s data.

The truth likely is that as long as the US maintains its national security state mentality and massively funds permanent agencies of war like the NSA there will always be these kind of abuses. Ultimately, the greatest impact from the Snowden disclosures may be the public being more vigilant with their private information and more skeptical of the state’s claims regarding power.