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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


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.


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:


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:


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:


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.


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.


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.


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.


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.”


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

Image via @citizenfour


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.


“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.”


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.'”

CyberCOP: NSA System Monitors Cyberattacks in Real-Time

In Archive, Bamford, Hacking, NSA, NSA Files, Snowden, Surveillance on February 6, 2015 at 7:02 AM


April 2013 NSA presentation of a system called CyberCOP, which monitors botnets and DDoS attacks around the world in real-time. (via NDR article/documentary)

Original CyberCOP PDF here. Slides enlarged below:




Another program, which NDR does not mention by name but is most likely called MonsterMind and has been reported on earlier, could then automatically with no human involvement, decide whether to fire back at the suspected origin of attacks.

Edward Snowden excerpt from PBS NOVA interview with James Bamford (2015):

Bamford: Now, also looking a little bit into the future, it seems like there’s a possibility that a lot of this could be automated, so that when the Cyber Command or NSA sees a potential cyber-attack coming, there could be some automatic devices that would in essence return fire. And given the fact that it’s so very difficult to—or let me back up. Given the fact that it’s so easy for a country to masquerade where an attack is coming from, do you see a problem where you’re automating systems that automatically shoot back, and they may shoot back at the wrong country, and could end up starting a war?

Snowden: Right. So I don’t want to respond to the first part of your question, but the second part there I can use, which is relating to attribution and automated response. Which is that the—it’s inherently dangerous to automate any kind of aggressive response to a detected event because of false positives.

Let’s say we have a defensive system that’s tied to a cyber-attack capability that’s used in response. For example, a system is created that’s supposed to detect cyber-attacks coming from Iran, denial of service attacks brought against a bank. They detect what appears to be an attack coming in, and instead of simply taking a defensive action, instead of simply blocking it at the firewall and dumping that traffic so it goes into the trash can and nobody ever sees it—no harm—it goes a step further and says we want to stop the source of that attack.

So we will launch an automatic cyber-attack at the source IP address of that traffic stream and try to take that system online. We will fire a denial of service attack in response to it, to destroy, degrade, or otherwise diminish their capability to act from that.

But if that’s happening on an automated basis, what happens when the algorithms get it wrong? What happens when instead of an Iranian attack, it was simply a diagnostic message from a hospital? What happens when it was actually an attack created by an independent hacker, but you’ve taken down a government office that the hacker was operating from? That wasn’t clear.

What happens when the attack hits an office that a hacker from a third country had hacked into to launch that attack? What if it was a Chinese hacker launching an attack from an Iranian computer targeting the United States? When we retaliate against a foreign country in an aggressive manner, we the United States have stated in our own policies that’s an act of war that justifies a traditional kinetic military response.

We’re opening the doors to people launching missiles and dropping bombs by taking the human out of the decision chain for deciding how we should respond to these threats. And this is something we’re seeing more and more happening in the traditional means as our methods of warfare become increasingly automated and roboticized such as through drone warfare. And this is a line that we as a society, not just in the United States but around the world, must never cross. We should never allow computers to make inherently governmental decisions in terms of the application of military force, even if that’s happening on the internet.

Watch the Al-Qaeda Anti-Tracking Tutorial that MailOnline Based Snowden Propaganda Piece On

In Al-Qaeda, Archive, NSA, Snowden, Surveillance, Terrorism on January 24, 2015 at 1:46 AM

News broke this week of a new tutorial video from Al-Qaeda media, purporting to use the NSA leaks from Edward Snowden to help evade surveillance. The story first appeared on Mail Online, saying the video “proves extremists are using leaks from US spy Edward Snowden to evade justice,” and that “security chiefs were spooked over the terror video.”

The story reeks of US/UK propaganda, and you’d think making such a bold claim the paper would publish the full video or at least link to its source, but it did not. Instead it posted only the first 30 seconds, which do not reference the Snowden leaks at all, and included a screenshot of the only part of the video that does mention one of the leaks; a CNN report with the headline “NSA Tracking Millions of Cellphones,” something that most definitely was common knowledge among terrorist groups well before the NSA leaks emerged.

See: Snowden Leaks DID NOT Impact Terrorist Communication/Encryption Tactics – Flashpoint Report

What MailOnline fails to mention in the report is that the 5 second clip is the only part of the 7 1/2 minute video that references the NSA or Snowden. The rest is information related to voice/facial recognition, fingerprint tracking re: mobile touchscreens, private surveillance contractor spying, phone tapping, using firewalls/VPNs/Tor, FBI spying (eg. disabling webcam light), and drone surveillance, ALL gathered from sources that have NOTHING to do with the NSA or Snowden.

Also, the video is not new, from what LeakSource could find it has been uploaded as early as October/November 2014, and it doesn’t contain “detailed guidance” on evading surveillance, as MailOnline reports. It is basic information at best.

Now it makes perfect sense why MailOnline did not upload the full video, their propaganda piece would fail if they did.

What’s just as sick as MailOnline’s report, is how other media organizations have taken the paper’s word and published their own stories spreading the propaganda more without doing some deeper investigation themselves, even RT is guilty of it in this case.

Well count on LeakSource to counter the spin, find the full video, and let you watch it for yourselves and make up your own minds.

5 PDFs attached with the video are included below. All seem to date around 2010, more evidence that terrorist groups were aware of surveillance capabilities well before the Snowden leaks:

Mobile Security (Arabic)

Internet Mobile Security (Arabic)

Security and Intelligence Principles (Arabic)

Security and Intelligence Course (English)

Compilation of Security and Intelligence Principles (English)

Related Link: Terrorist Tutorial on Metadata Removal from Multimedia

Snowden’s Great Escape

In Archive, Assange, Bolivia, Harrison, Hong Kong, NSA, Russia, Snowden, Surveillance, WikiLeaks on January 24, 2015 at 12:04 AM


“Snowden’s Great Escape” tells the story of how Edward Snowden managed to escape Hong Kong and U.S. prosecution with the assistance of WikiLeaks, after blowing the whistle on NSA’s secret mass surveillance programs. Featuring newly revealed details provided in exclusive interviews with Snowden, Julian Assange, and Sarah Harrison.

New Revelations Include:

Snowden Bought Ticket to India as Cover to Help Escape from Hong Kong

Assange: “This was the largest intelligence manhunt the world has ever seen, so the U.S. was throwing everything, all it’s resources at this thing. So we needed someway of splitting those resources, because we didn’t want them all focused on his flight out. [Snowden] bought a ticket to India as cover, was booked using his credit card for 2 days after the actual asylum flight.”

Russia’s FSB Approached Snowden in Sheremetyevo Airport

Harrison: “They asked once, they had approached. I mean, it’s kind of unimaginable to think that they wouldn’t. He didn’t give anything to the Russians at all, and he certainly didn’t cooperate with them or give them anything in anyway whatsoever.”

DR Interviewer: “How do you know?”

Harrison: “I was with him the whole time, so I would stake my entire life on the fact that he did not give anything to anybody.”

Assange/WikiLeaks Spread Rumor of Snowden Being on Morales Flight

Assange: “We consciously laid false trails in relation to the Morales flight. Sometimes there would be calls to ambassadors on open telephone lines for example, including from this [Ecuador] embassy. You know, we were trying to split-up the surveillance resources. Force the United States to consider the Morales flight.”

DR Interviewer: “Do you think that one could imagine disinformation?”

Hayden: “That’s an interesting question. I must admit I hadn’t considered it before, but it’s always a possibility, sure.”

Assange: “I didn’t know that diversion would end up in such an extraordinary outcome.”

DR Interview: “The Morales flight also kind of helped the Russians giving [Snowden] asylum?”

Hayden: “It did, and it reinforced the image of Snowden as victim, Snowden as the pursued, yeah.”

DR Interview: “So, if you were sitting on the other side of the fence, to trap the Americans, would that be a wise move?”

Hayden: “Again I hadn’t thought of it until you raised it, but it’s incredibly clever yeah, yeah.”

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