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Second Circuit Court of Appeals Rules NSA Bulk Collection of American’s Phone Records Unlawful

In ACLU, Archive, Greenwald, NSA, Snowden, Surveillance, USA on May 8, 2015 at 1:46 PM

05/07/2015

Patrick Toomey/Noa Yachot/ACLU:

In a landmark victory for privacy, the Second Circuit Court of Appeals in New York ruled unanimously today that the mass phone-records program exposed two years ago by NSA whistleblower Edward Snowden is illegal because it goes far beyond what Congress ever intended to permit when it passed Section 215 of the Patriot Act.

The ruling in ACLU v. Clapper is enormously significant, and not only because the program in question — the first to be revealed by Edward Snowden — is at the heart of a legislative reform effort playing out right now, or because it sparked the most significant debate about government surveillance in decades. The decision could also affect many other laws the government has stretched to the breaking point in order to justify dragnet collection of Americans’ sensitive information.

Under the program, revealed in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a daily basis, records relating to the calls of all of their customers. Those records include information about who called whom, when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district court.

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A few points on what makes the decision so important.

1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale. Section 215 allows the government to demand from third parties “any tangible thing” relevant to foreign intelligence or terrorism investigations. “Relevant” is a pretty abstract term, but the government employed a pretty fantastical interpretation to argue that every single call record in America is “relevant” because some of those records might come in handy in a future investigation.

The decision says:

2nd-circuit-nsa-1

2. The decision’s significance extends far beyond the phone records program alone. It implicates other mass spying programs that we have learned about in the past two years and — almost certainly ­— others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.

The judges wrote:

2nd-circuit-nsa-2

3. Metadata is incredibly sensitive and revealing. The government has long argued that the phone records program doesn’t reveal the contents of calls, and as such, it is not an invasion of privacy. But metadata, especially in aggregate, can be just as revealing as content, painting a detailed picture of a person’s life.  The decision reads:

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4. The importance of adversarial review. The court recognized that public, adversarial litigation concerning the lawfulness of this spying program was vitally important to its decision — and it drew a direct contrast to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance Court.

The FISC operates in near-total secrecy, in which it almost always hears only from the government. It oversees a wide variety of broad surveillance programs without any public participation or input, approving a body of secret law that has no place in a democracy. This decision affirms the role that federal courts — and the public — have in overseeing practices with such sweeping constitutional implications.

5. The congressional reforms under consideration just don’t cut it. Ahead of Section 215’s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is trying to push through a straight reauthorization of the provision, extending its life by another five years. After today’s decision came down, he took to the floor to defend the program — a position altogether at odds with the appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasn’t been effective in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesn’t go nearly far enough, most notably in ensuring that the government cannot engage in broad collection of innocent Americans’ private information.

We hope that today’s ruling prompts Congress to consider and enact legislation that’s more robust than what’s currently on the table. Short of that, we continue to believe that Congress should seize the June 1 expiration date as an opportunity to let Section 215 die.

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A district court judge had previously dismissed a lawsuit filed by the ACLU in June 2013 that said the program violates people’s privacy, less than a week after documents leaked by former NSA contractor Edward Snowden revealed that the agency has regularly collected records of phone calls pertaining to millions of Americans. The ACLU appealed that ruling in January 2014 and its suit has been remanded back to the district court upon this week’s decision.

U.S. Attorney General Loretta Lynch said on Thursday the Department of Justice was reviewing the court decision that revived ACLU’s lawsuit. “We are reviewing that decision,” Lynch said at a Senate budget hearing. She said the collection was a “vital tool in our national security” and that she was not aware of any privacy violations under the revised program.

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The ruling aligns with the lower court decision in a similar lawsuit in Washington, Klayman v. Obama, in which U.S. District Judge Richard J. Leon found the NSA program to be likely unconstitutional.

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Dan Froomkin/TheIntercept:

The panel rejected the government’s argument that the ACLU lacked standing because it couldn’t prove that any one person’s records, sitting in a searchable database, had been reviewed by government officials. But whether it’s a machine or a person doing the searching doesn’t matter, Lynch wrote:

[T]he government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

This could become an important precedent in a legal review of the NSA’s ability to automatically turn voice into text, which I disclosed on Tuesday, based on more documents from the Snowden archive.

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During an appearance on MSNBC Thursday afternoon, journalist Glenn Greenwald told Alex Wagner he has spoken to Edward Snowden about the ruling and that the exiled whistleblower is “thrilled” with the decision.

“It took Edward Snowden to come forward and he came forward in large part because he heard Director [James] Clapper, the senior U.S. national security official, tell the Senate and the American people falsely that the government was not doing exactly the program that the court today said was illegal,” Greenwald added, saying it was “very gratifying” to hear the decision today.

Later, when Wagner asked if Greenwald believes this ruling will mean the end of James Clapper’s career, he said we now know the director was “lying and hiding a program that was against the law,” adding, “If that doesn’t get you fired by the Obama Administration, let alone prosecuted, what does? If that’s not a firing offense, then nothing is.”

Finally, when Wagner asked Greenwald if he thinks the ruling could lead to Snowden’s return to the U.S., he replied, “It should.”

“How can anybody say that we would be better off if Edward Snowden had just kept quiet and let us remain ignorant of the spying program that a federal court now said is illegal? It’s classic whistleblowing,” Greenwald said. “I think he deserves our national gratitude, not a life in prison.”

05/08/2015


Snowden gave his first public reaction to the ruling at the Nordic Media Festival. He was interviewed on livestream by Tor expert and Forbes contributor Runa Sandvik, who first met Snowden while he was still an NSA contractor when they threw a cryptoparty together in Hawaii.

“This is significant. The importance of it in the U.S. legal community—the policy community–can’t be overstated,” Snowden said, when asked about the ruling. “This decision will not affect only the phone metadata program. It will affect every other mass surveillance program in the U.S. going forward.”

Snowden highlighted the impact that the information he leaked to Glenn Greenwald and other journalists has had on the court’s ability to respond to check  government surveillance. “What’s extraordinary about this is the fact that in 2013 before the leaks, the same issues had been tried to be reviewed by the courts,” Snowden said. “Another NGO called Amnesty International brought the same challenge against the same individual. They threw it out of court because Amnesty could not prove it had been spied upon.”

Snowden explained that Greenwald’s story involved a “secret order from a secret court” authorized to monitor phone calls and collect metadata from U.S. citizens. “Metadata [is] analogous to the kind of information a Private Eye would collect if they were following you around. Not necessarily a record of every word you said in conversation with someone else, because you would notice them, but where you had traveled and who you met with,” Snowden said. “What makes this surveillance so dangerous is that it targeted all Americans, regardless of—and before–any suspicion of criminal activity,” he added.

“This being struck down is really a radical sea change in the level of resistance that the United States government has placed thus far. So far, courts have said basically, it’s not our place or our role to tell the executive branch of the government how to do their job,” Snowden said. “It is extraordinarily encouraging to see the court are beginning to change their thinking to say ‘if Congress will not pass reasonable laws, if the executive will not act as a responsible steward of liberty and rights in how they execute the laws, it falls to the courts to say this has gone too far.’”

Related Links:

Privacy & Civil Liberties Oversight Board Report on NSA Telephone Records Program: Illegal, Ineffective, Should End

UN Special Rapporteur on Counter-Terrorism & Human Rights Issues Scathing Report on Mass Surveillance

CITIZENFOUR Wins Oscar for Best Documentary (Laura Poitras Acceptance Speech & Edward Snowden Statement)

In Archive, CITIZENFOUR, Greenwald, NSA, NSA Files, Poitras, Snowden, Surveillance on February 23, 2015 at 2:12 AM
citizenfour-oscar

Image via @citizenfour

02/22/2015

Laura Poitras has won an Academy Award for her documentary “CITIZENFOUR”, an inside look at National Security Agency whistleblower Edward Snowden.

The film, which has been hailed as a real-life thriller, chronicles Snowden’s effort to securely contact Poitras and Glenn Greenwald in 2013 and meet them in Hong Kong, where Poitras filmed Snowden discussing the thousands of classified NSA documents he was leaking to them, and his motives for doing so. The film takes its title from the pseudonym Snowden used when he contacted Poitras in encrypted emails that were revealed in her documentary.

WATCH CITIZENFOUR HERE

“The disclosures that Edward Snowden reveals don’t only expose a threat to our privacy but to our democracy itself,” Poitras said in her acceptance speech. “When the most important decisions being made affecting all of us are made in secret, we lose our ability to check the powers that control. Thank you to Edward Snowden for his courage and for the many other whistleblowers. And I share this with Glenn Greenwald and other journalists who are exposing truth.”

Edward Snowden statement via ACLU:

“When Laura Poitras asked me if she could film our encounters, I was extremely reluctant. I’m grateful that I allowed her to persuade me. The result is a brave and brilliant film that deserves the honor and recognition it has received. My hope is that this award will encourage more people to see the film and be inspired by its message that ordinary citizens, working together, can change the world.”

lindsay-mills

And Snowden’s reply to Neil Patrick Harris‘ treason joke:

“Wow the questions really blew up on this one. Let me start digging in…

To be honest, I laughed at NPH. I don’t think it was meant as a political statement, but even if it was, that’s not so bad. My perspective is if you’re not willing to be called a few names to help out your country, you don’t care enough.

If this be treason, then let us make the most of it.'”

CITIZENFOUR (2014)

In Archive, CITIZENFOUR, Greenwald, NSA, NSA Files, Poitras, Snowden, Surveillance on January 21, 2015 at 5:15 AM

citizenfour

2014

CITIZENFOUR is a real life thriller, unfolding by the minute, giving audiences unprecedented access to filmmaker Laura Poitras and journalist Glenn Greenwald’s encounters with Edward Snowden in Hong Kong, as he hands over classified documents providing evidence of mass indiscriminate and illegal invasions of privacy by the National Security Agency (NSA).

Poitras had already been working on a film about surveillance for two years when Snowden contacted her, using the name “CITIZENFOUR,” in January 2013.  He reached out to her because he knew she had long been a target of government surveillance, stopped at airports numerous times, and had refused to be intimidated. When Snowden revealed he was a high-level analyst driven to expose the massive surveillance of Americans by the NSA, Poitras persuaded him to let her film.

CITIZENFOUR places you in the room with Poitras, Greenwald, and Snowden as they attempt to manage the media storm raging outside, forced to make quick decisions that will impact their lives and all of those around them.

CITIZENFOUR not only shows you the dangers of governmental surveillance—it makes you feel them. After seeing the film, you will never think the same way about your phone, email, credit card, web browser, or profile, ever again.

UPDATE 02/22/2015 CITIZENFOUR Wins Oscar for Best Documentary (Laura Poitras Acceptance Speech & Edward Snowden Statement)

CONFIRMED: Glenn Greenwald Working With Second U.S. Intelligence Whistleblower

Why Privacy Matters – Glenn Greenwald @ TEDGlobal 2014

In Archive, Greenwald, NSA, Surveillance on October 12, 2014 at 9:35 PM

10/07/2014

TED:

Journalist Glenn Greenwald  has broken many stories on the global surveillance being conducted by the NSA and GCHQ. As one of the first reporters to see Edward Snowden’s files, he faced personal repercussions for his professional work — yet continues to speak publicly about mass surveillance. In this searing talk, Greenwald makes the case for why privacy matters.

Over the last 16 months, every time someone says to Greenwald that they don’t really worry about their privacy, he says the same thing: “Here’s my email address. What I want you to do when you get home is email me the passwords to all of your email and social media accounts, because I want to be able to troll through what it is that you’re doing online and publish whatever I find interesting.” To date, not a single person has taken him up on that offer. There’s a reason for that, he says. “We as human beings, even those of us who in words disclaim the importance of our own privacy, instinctively understand the importance of it. As human beings, we are social animals, which means we have a desire for others to know what we are doing and saying. It’s why we post on our social media accounts. But equally essential to what it means to be human is the ability to have a place where we can go to be free of the judgmental eyes of other people. There are all sorts of things we do and think that we’re willing to tell our doctor, our lawyer, our therapist, spouse, best friend — that we would be mortified for the world to know. All of us, not just criminals and terrorists, have things to hide.”

There’s a reason why privacy is craved so reflexively and instinctively, he says: “When we’re in a state where we can be monitored and watched, our behavior changes dramatically. There are dozens of psychological studies that prove that when people know they’ll be watched, their behavior is vastly more compliant. It’s a fact of human nature that has been recognized in every field of discipline. There are dozens of psych studies that prove that when someone knows they are watched, the behavior they engage in is more conformist. People make decisions that are not the byproduct of their own agency, but are about the expectations others have of them. Decisions that are not the byproducts of their own agency, but are the mandates of societal orthodoxy.”

Prisons have known this for many, many years. The Panoptican — the watchtower — is one example of that. “Because the prisoners could not see into the tower, they never knew if they were being watched and when, so they would have to assume they were being watched at all times. Michel Foucault said every institution can watch — that it’s not just for prisons but for every institution that seeks to control human behavior. Mass surveillance creates a prison in the mind. This mindset, this framework… was the key means of society control for modern western society. It was much more subtle, much more effective than brute force could ever be.” You no longer needed weapons of tyranny. Here was a much more subtle, more effective means of fostering compliance — completely internalized.

There are two destructive lessons that people take from the current state of surveillance, says Greenwald. One: that people who care about privacy are by definition bad people, that only dissidents and journalists have something to worry about. And two: that if you’re willing to render yourself sufficiently harmless and unthreatening to those who wield power, then and only then can you be free of the dangers of surveillance.

A society in which all people can be monitored at all times is a society that breeds conformity and submission. Conversely and even more importantly, having a realm of privacy — the ability to go somewhere and think and reason and interact without the judgmental eyes of others — is one that fosters creativity and exploration.

We all have an interest in insuring that the people who monitor those people who wield surveillance power have the ability to check them, says Greenwald: “The ultimate test of a society’s freedom is not how it treats its good, obedient, compliant citizens; it’s how it treats its dissidents.”

CONFIRMED: Glenn Greenwald Working With Second U.S. Intelligence Whistleblower

In Archive, Greenwald, Surveillance on October 11, 2014 at 1:30 PM

10/11/2014

The investigative journalist Glenn Greenwald has found a second leaker inside the US intelligence agencies, according to a new documentary about Edward Snowden that premiered in New York on Friday night.

Towards the end of filmmaker Laura Poitras’s portrait of Snowden – titled CITIZENFOUR, the label he used when he first contacted her – Greenwald is seen telling Snowden about a second source.

In the key scene, Greenwald visits Snowden at a hotel room in Moscow. Fearing they are being taped, Greenwald communicates with Snowden via pen and paper.

While some of the exchanges are blurred for the camera, it becomes clear that Greenwald wants to convey that another government whistleblower — higher in rank than Snowden — has come forward.

The revelation clearly shocks Snowden, whose mouth drops open when he reads the details of the informant’s leak.

The specific information relates to:

The scene comes after speculation in August by government officials, reported by CNN, that there was a second leaker. The assessment was made on the basis that Snowden was not identified as usual as the source and because at least one piece of information only became available after he ceased to be an NSA contractor and went on the run.

UPDATE 10/27/2014 FBI Raids Suspected Second US Intelligence Leaker

Related: The US Intelligence Community Has a Third LeakerBruce Schneier

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