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Story 1: Stand With Rand Against Renewal of Patriot Act and National Security Agency’s Turnkey Tyranny And Repeal of Fourth Amendment of U.S. Constitution — Videos
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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AFTER OVER 10 HOURS, RAND PAUL ENDS HIS NSA ‘FILIBUSTER’
The Kentucky Republican spoke on the Senate floor until he could no longer stand. Here’s everything that happened.
“There comes to a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul started. “That time is now. And I will not let the Patriot Act, the most un-patriotic of acts, go unchallenged.”
Paul took the podium at 1:18 p.m. and left the floor at 11:49 p.m. Here’s what happened, and what’s coming next.
12:26 a.m.: A very tired Rand Paul, off the floor, opens up.
After he walked off the Senate floor, the Kentucky senator told reporters he was “tired, voice is worn out, ready to go home.”
But Paul didn’t feel like his time and energy were for nothing. Business shoes in hand, a weary Paul said “we accomplished something by having, you know, it was kind of nice to have bipartisan support.”
Paul said that even though he didn’t last until midnight, he still believed he had slowed down the clock by a day on procedural advancement on any Patriot Act reauthorization. But an aide to Senate Majority Leader Mitch McConnell suggested the theatrics matter little. “Cloture on trade would be tomorrow either way. Patriot Act is after that,” the aide said.
Because McConnell did not file for cloture by Tuesday evening, it was already unlikely the Senate could act on the Patriot Act before the House goes on recess tomorrow, given the drawn-out parliamentary process of the upper chamber. Unless the Senate is willing to stay in town over the weekend and approve the House-passed Freedom Act, it appears increasingly likely that we are headed for a full expiration of the law’s three surveillance authorities, which sunset on June 1.
Paul, while talking to reporters, took a jab at President Obama for not ending the NSA’s bulk phone-records program unilaterally. Obama “needs to step up and be a little more of a leader in getting us out of this mess,” he said.
Noting support from Sens. Mike Lee and Ted Cruz, his presidential rival, Paul said “We’re not exactly [on] the same page but I think we’re all opponents of the bulk collection.” Both Lee and Cruz support the USA Freedom Act, while Paul says it does not go far enough.
11:49 p.m.: It’s over. Thanking his staff, Sen. Rand Paul has relinquished the floor after 10 hours and 30 minutes.
Since Paul didn’t speak past midnight, the week’s schedule appears to remain unchanged. Earlier in the night, an aide to Senate Majority Leader Mitch McConnell said that if Paul talked into Thursday, it would hold up possible consideration of a Patriot Act extension and throw off the Senate’s calendar before breaking for recess.
11:45 p.m.: We’re winding down. After Sen. Ted Cruz’s fiery speech, a tired Paul took the podium for a final hurrah. “My voice is rapidly leaving, and my bedtime has long since past,” he said, before launching into a summary of what he’s been saying for almost 10 and a half hours. “Bulk collection must end, and I think we have the votes to end it now,” Paul said.
11:29 p.m.: At last, Ted Cruz stands with Rand. Sen. Ted Cruz joined Paul to rail against the Patriot Act late Wednesday evening, just before 11:30 p.m. Cruz is the third Republican to join Paul on the floor.
The Texas Republican praised Paul for having “altered this debate” over NSA surveillance.
Cruz presided over the Senate for a bit earlier in the evening but stepped down to the floor to join Paul’s efforts.
Cruz is running for the GOP nomination for president, as is Paul. Sen. Marco Rubio is currently presiding, meaning three Republican White House contenders are currently in the chamber. A Paul-sanctioned super PAC that is backing his presidential bid earlier mocked Cruz on Twitter for not #StandingWithRand.
Cruz began talking up the virtues of the House-passed USA Freedom Act. Though Cruz supports the bill, he is only one of five GOP co-sponsors in the Senate. Paul believes the bill does not enough, while Rubio wants to preserve the Patriot Act’s spying authorities and the NSA’s bulk data regime.
Cruz emphasized that a straight extension of the Patriot Act provisions that the NSA uses to justify its surveillance program would not be acceptable.
“It is abundantly, abundantly clear that a clean reauthorization of the Patriot Act ain’t passing this body, and it certainly ain’t passing the House of Representatives.”
Cruz spent much of his speech focusing on the personal, saying that standing on the floor with Paul and Sen. Mike Lee reminded him of The Blues Brothers and getting the band back together.
“I said many times I will go to my grave in debt to Sen. Rand Paul that the first opportunity I had to speak on the Senate floor was in support of his epic filibuster,” Cruz said.
11:25 p.m.: Rand Paul is now selling a “filibuster starter pack.” This talk-a-thon is about more than just national security, the power of government, and privacy rights. It’s also about Rand Paul and his presidential ambitions. The latest example: you can now buy yourself a “filibuster starter pack” at Paul’s online campaign store, as the senator’s Twitter account alerted followers to.
The kit is $30 and includes, per the site, a t-shirt that reads “The NSA knows I bought this Rand Paul tshirt,” a bumper sticker that says the same, just about buying a sticker, and a “Spy blocker” for your computer camara.
11:16 p.m.: Patriot Act defender Marco Rubio is now presiding over Paul’s Patriot Act takedown. Another GOP presidential candidate is now presiding over Paul’s “filibuster.” Sen. Marco Rubio of Florida took over the duties to run the floor from Sen. Ted Cruz.
Rubio has vociferously defended the NSA’s surveillance powers, once penning an op-ed calling for the permanent extension of the Patriot Act’s spy provisions.
Rubio was spotted intently reading a magazine—using a pen to go line by line—as Sen. Lee spoke from the floor. Cruz, meanwhile, took a seat to Lee’s right, indicating he may end up joining the talk-a-thon after all.
11:10 p.m.: Rand Paul’s biggest House fans join him on Senate floor. A handful of House members gathered behind Paul on the Senate floor late Wednesday to cheer him on. The gaggle included Republican Rep. Tom Massie and Democratic Rep. Earl Blumenauer, both of whom voted against the House-passed USA Freedom Act last week on grounds it does not do enough to curb NSA surveillance. Massie has long been a big political ally of Paul’s.
Paul tonight has repeatedly said he is concerned the Freedom Act needs to do more before it can earn his support.
10:43 p.m.: Mike Lee returns. The tea-party Republican from Utah has reemerged to keep the Patriot Act talk-a-thon going. Lee is one of two Republicans to speak on the floor for Paul’s “filibuster,” along with Sen. Steve Daines of Montana.
Lee is a lead sponsor of the House-passed USA Freedom Act, alongside Sen. Patrick Leahy, the top Democrat on the Judiciary Committee. Though seven Democrats have supported Paul on the floor today, Leahy is not one them.
10:25 p.m.: Cruz’s office says he was scheduled to be presiding officer. In a strange twist of fate, Sen. Ted Cruz was already on the books to preside over the Senate tonight, his office says. Many expected Cruz to support Paul during his speech.
10:15 p.m.: As promised, Wyden is back. The Oregon Democrat has returned to speak on the floor, giving Paul a much-needed break.
10:10 p.m.: Sen. Ted Cruz arrives, but not to help. After nearly nine hours, Republican Sen. Ted Cruz arrived on the floor. But he wasn’t there to stand with the long-suffering Kentucky senator—he is presiding over the nearly-empty senate.
Cruz, who, like Paul, is running for the GOP presidential nomination, is a co-sponsor of the USA Freedom Act, which would rein in parts of the NSA and effectively end its bulk collection of U.S. call data. He is one of five Republicans to cosponsor the measure. Paul has said the bill does not go far enough.
9:50 p.m.: Another Democrat arrives to stand with Rand. Sen. Richard Blumenthal of Connecticut appeared to give Paul another breather. This is the seventh Democrat to come to Paul’s assistance.
Blumenthal talked about the secrecy of the Foreign Intelligence Surveillance Court and pressed for more transparency and oversight of the judicial body, which some privacy advocates have derided as a “rubber stamp” for the NSA’s surveillance orders. Blumenthal called for an adversarial body to argue against the government before the FISA Court.
9:48 p.m.: Ron Paul is standing with his son. The Campaign for Liberty, the organization led by former Rep. Ron Paul, tweeted out a picture of Paul and his wife standing by a TV tuned to C-SPAN 2. “C4L Chairman @RonPaul and his wife Carol stand with their son Rand to end NSA spying. Do you? #StandWithRand”
9:43 p.m. Rand Paul is slowing down. Over the last twenty minutes, Paul has paused for prolonged moments, swaying back and forth as he shuffles through the papers on his desk. His voice sounds hoarse, and he has fallen silent to pop a candy into his mouth a few times. If you were wondering if talking for so long with few breaks can get physically taxing, he’s your proof.
9:03 p.m.: Wyden returns. Sen. Ron Wyden, who was the first senator to join Paul several hours ago, is now back on the floor. The Oregon Democrat discussed his concerns about so-called “backdoor search loopholes” that can be used by the intelligence community to pry into the digital communications of Americans who correspond with foreigners.
Wyden then praised Paul’s stamina and determination before pledging to return later in the evening. “I intend to rejoin my colleague before long,” Wyden said.
8:57 p.m.: After listening for hours, Sen. Cantwell speaks. Washington Democrat Maria Cantwell, who has been sitting at a desk for much of the evening—certainly longer than any other senator—stood to ask Paul about encryption technology. She follows Sens. Wyden, Heinrich, Manchin, Coons, and Tester as the sixth Democrat to speak with Paul.
8:51 p.m.: McConnell aide: If Paul talks past midnight, he will delay NSA consideration. An aide for Senate Majority Leader Mitch McConnell said late Wednesday that if Paul continues his talk-a-thon past midnight, he will succeed in delaying the Senate’s possible consideration of any Patriot Act extension, possibly into the weekend or later.
This is significant because the House is due to pack its bags and leave town tomorrow. Because the Patriot Act’s spy authorities expire on June 1, the Senate may not be able to pass any surveillance legislation in time before the lower chamber recesses until next month.
If Paul makes it past midnight, the McConnell aide said, he will delay when the Senate—which still needs to address pending trade legislation—can file cloture on any Patriot Act legislation.
Earlier Wednesday, the Obama administration said the NSA would start shutting down its phone-records dragnet this Friday in order to have it turned off completely by June 1 unless Congress figured out a way forward before then.
It is unclear if McConnell would have filed cloture today had he been given the opportunity, however. And this all may be a moot point, as it is unclear if either the Freedom Act or a short-term “clean” reauthorization has the 60 votes necessary to advance through the Senate.
8:12 p.m.: Paul: Freedom Act allows for continued spying. Paul has said he’s unhappy with the House-passed USA Freedom Act because it doesn’t go far enough to stop NSA surveillance. He outlined his gripes with the bill on the floor, saying that the liability protection it offers telephone companies is proof that it doesn’t limit the spying programs enough.
“One question I would ask, if there was anybody that would actually tell you the answer, would be: If we already gave them liability protection under the Patriot Act, why are they getting it again under the USA Freedom Act unless we’re asking them to do something new that they didn’t have permission for?” Paul asked.
“The other problem with the USA Freedom Act is: If you think bulk collection is wrong, why do they need new authorities? Why are we giving them some new authorities?” he continued.
7:55 p.m.: Paul: This is just the tip of the iceberg. Paul is under no illusions that letting portions of the Patriot Act expire would end what he calls illegal spying. While the NSA’s bulk surveillance is a high-profile target, Paul says he thinks there are many similar programs that haven’t been revealed.
“If we decide to fix bulk records and try to do something about this, I think, injustice, the main thing is we should be aware that this isn’t the only program. There’s probably a dozen programs. There’s probably another dozen we haven’t even heard of that they won’t tell any of us about,” Paul said.
“And realize that they’re not asking Congress for permission. They are doing whatever they want,” he continued. “We did not give them permission under the Patriot Act to do bulk collection of phone records. They are doing it with no authority, or inherent authority, or some other authority, because the courts have already told them that there is no authority under the Patriot Act.”
7:47 p.m.: Paul goes off on EPA overreach. To illustrate the problems that come with big government, Paul turned away from the NSA and toward the EPA, an agency much reviled among conservatives unhappy with government overinvolvement.
Paul brought up a case that saw a man and his daughter sentenced to 10 years in prison for “putting clean dirt on his own land.”
“That’s what’s happening in America. So you wonder why some of us worry about our records being snatched up? We’re worried about our own government’s run amok, that our own government’s out of control and that our own government’s not really paying attention to us,” Paul said. “To put a 70-year-old man in prison for ten years for putting clean dirt on his own land, the person that did that ought to go to jail, in fact they ought to be put in a stockade and publicly flogged and then made to pay penance for a decade for doing something so stupid.”
Paul appeared to be referring to this 2005 case. According to an EPA administrator, “the defendants destroyed valuable wetlands and victimized the residents of Big Hill Acres, who ended up with polluted homes and yards with leaking sewage.”
7:13 p.m.: Rand’s getting a lot of help, but where is Ted Cruz? Two Republicans and five Democrats have joined Paul’s extended oratorical demonstration against the Patriot Act, but one senator is so far notably absent: Ted Cruz.
Cruz, who, like Paul, is running for president, has frequently lambasted the NSA for violating Americans’ privacy rights with its sweeping surveillance programs. Cruz is also one of five GOP cosponsors of the USA Freedom Act, the reform bill that passed the House and would effectively end the NSA’s domestic phone-records dragnet.
But Cruz, who was spotted in the Capitol earlier Wednesday, has so far not appeared on the floor to lend support to Paul. Cruz’s office did not respond to multiple requests for comment asking whether the Texas senator had plans to join the “filibuster.”
6:50 p.m.: Sen. Jon Tester is here. The Montana Democrat and chairman of the Democratic Senatorial Campaign Committee is the fifth Democrat to join Paul on the Senate floor.
6:45 p.m.: Rand Paul takes on “people who believe that the inherent authorities of the president are unlimited.” Paul said the bulk collection program’s beginnings, during which it was not sanctioned by law, fell outside the bounds of a president’s authority.
“For the first several years we did bulk collection, they just did it,” Paul said. “They just said it was under the inherent authorities of the president. This should scare us because there are people who believe that the inherent authorities of the president are unlimited. That would not be a president. There would be another name for that.”
6:44: Sen. Chris Coons comes to the floor. The Delaware senator is the fourth Democrat to come to the floor.
It’s relatively rare for my colleague from Kentucky and I to come to the floor in agreement on an issue,” Coons said. “But it has happened before on exactly this issue.”
6:35 p.m.: Standing with Rand outside the Capitol. About 25 “grassroots” supporters of Rand Paul gathered outside the Capitol Wednesday to show solidarity for his stand against the Patriot Act and support his presidential campaign. Chanting “stand with Rand” and “President Paul,” the group was nearly matched by the number of journalists snapping photos of the demonstration.
Cliff Maloney, 24, organized the event on Facebook. Maloney, who works for Young Americans for Liberty, said he supports Paul because of his stances on privacy issues and ability to reach out to younger voters.
“Look at today,” Maloney said. “He’s on the Senate floor filibustering [for digital privacy rights]. And that’s something young voters care about.”
6:20 p.m.: Sen. Joe Manchin Spars with Paul over USA Freedom Act. The Democrat from West Virginia joined Paul on the floor just after 6 p.m. “My good friend, I don’t always agree with you on every issue, but when it comes to this nation’s intelligence gathering and security, we agree more than we don’t,” Manchin said.
Manchin went on to express his support for the NSA reform bill that the House passed last week. “I believe this bill, USA Freedom 2015, moves us in a positive direction, ends the bulk data collection program, and ensures that the collection of data is related to a relevant, particular terrorist investigation,” Manchin said.
When Paul took the podium again, he laid out his concerns with the act that Manchin was touting. “I want to like it, and I want to because it ends bulk collection,” Paul said. But he said the fact that the bill allows the government to search for a person’s records leaves a loophole.
“See, the big thing for me is a warrant should be individualized and I’m worried when you use the word “person” if it can be replaced with the word verizon and still collect all the records,” Paul said. The problem stems from the legal practice of treating corporations as people.
“I don’t know if they’re insurmountable, but those are a couple concerns,” Paul said.
6:02 p.m.: Sen. Steve Daines joins the fray. Montana Republican Steve Daines joined Paul’s stand against the Patriot Act shortly before 6 p.m.
“I spent more than 12 years in the technology sector before being elected to Congress,” Daines said. “I know firsthand the power that big data holds. I also know the great risks that arise when this power is abused. There is a clear and a direct threat to American civil liberties that comes from the mass collection of our personal information and our phone records.”
Daines is one of five GOP cosponsors of the reform-minded USA Freedom Act, which passed the House easily last week. Paul is not a cosponsor of the measure, which he says does not go far enough to limit the Patriot Act’s spying provisions.
It is expected nearly all Senate Democrats would vote for the Freedom Act, with Sen. Bill Nelson being the lone holdout. But it remains unclear if the bill has enough Republican support to reach a filibuster-proof 60-vote threshold, especially with Senate Majority Leader Mitch McConnell whipping against it.
5:53 p.m.: What Rand Paul wants. Paul began going into detail over the last twenty minutes about the amendments he and Sen. Ron Wyden are “most likely” to offer on legislation seeking to reauthorize the expiring provisions of the Patriot Act. Many of the amendments would push for privacy safeguards that the two civil-liberties advocates have long championed.
The first amendment, Paul said, would prohibit the government from mandating that tech firms create so-called surveillance “backdoors” in their products, which the NSA could access. “I know facebook has objected to this and fought them on this, but our amendment would say that the government just can’t do this,” Paul said.
A second amendment would “end bulk collection and replace it with nothing,” Paul said. It would close a loophole that allows back-door searches, he said, referring to the NSA’s practice of using a rule that allows it to search the foreigners’ data to capture information on U.S. citizens. The amendment would also require a “constitutional advocate” to be present in order to argue against the government in intelligence courts.
That amendment, Paul said, would also enact certain privacy protections for Americans whose digital records are held by third-party companies.
Another amendment Paul wants to introduce would make warrantless spying on Americans illegal “in non-terror” cases. He said the amendment would protect Americans against the government using a warrant intended for foreign terrorists that’s easier to obtain.
A fourth amendment would require courts to approve national security letters to “make them more like warrants,” Paul said. So-called NSLs compel companies to hand over communications data or financial records of certain users for the purposes of a national security investigation. The decades-old investigative tool that has grown in importance and frequency of use since the Patriot Act’s passage. Hundreds of thousands of letters have been used by the Justice Department since Sept. 11, 2001, and are often accompanied by gag orders.
Paul continued to tick off several other amendment ideas, including additional protections for whistleblowers, allowing for U.S. citizens to appeal surveillance orders handed down by Foreign Intelligence Surveillance Court, and implementing limitations to the Reagan-era Executive Order 12333, which some privacy advocates say allows the NSA the majority of its spying power.
5:50 p.m.: Supports of Rand to Rally in Capitol. A group of “grassroots supporters” for Paul’s efforts to block the Patriot Act will gather at 6 p.m. outside the U.S. Capitol, according to a Facebook event page. The event calls for supporters to gather on the Senate steps “on the west front side” that face the White House. Eighty-nine people have currently RSVP’d for the Stand with Rand party.
5:01 p.m.: Martin Heinrich arrives. Democratic Sen. Martin Heinrich became the second Democrat to join Paul on the floor to criticize the NSA’s mass surveillance programs.
The New Mexico senator took the opportunity to cite a recent federal appeals court decision deeming the NSA’s phone-records dragnet illegal as proof the Patriot Act’s spying provisions cannot be renewed without substantial changes akin to what the USA Freedom Act offers.
“Why on Earth, I would ask you, why on Earth would we extend a law that this court has found to be illegal?” Heinrich asked. “Now, given the overwhelming evidence that the current bulk collection program is not only unnecessary but also illegal, i think we’ve reached a critical turning point
Heinrich serves on the intelligence committee along with Sen. Ron Wyden, who spoke on the floor earlier. The two have frequently teamed up to question the intelligence community’s broad surveillance powers.
4:46 p.m.: Lee makes his case for a vote on USA Freedom. Sen. Mike Lee said he was open to amendments to his NSA reform package, the USA Freedom Act, but that it would be irresponsible for the Senate to not take up consideration with sufficient time for discussion.
“If there are those who have concerns with the legislation passed by the House of Representatives last week by a vote of 338-88, I welcome their input, I welcome any amendments they may have, I welcome the opportunity to make the bill better to make it more compatible with this or that interest,” Lee said. “We cannot continue to function by cliff. Government by cliff is a recipe for disaster.”
4:27 p.m.: Wyden out, Lee in. Sen. Mike Lee, R-Utah, joined Paul on the Senate floor to give the Kentucky senator’s vocal cords a rest. Lee has been an outspoken supporter of reforming the NSA’s surveillance programs, and is one of the co-sponsors of the USA Freedom Act. Lee acknowledged that his position is not as extreme as Paul’s—he does not support allowing the Patriot Act to expire, as Paul does—but he offered his support on the floor.
“Let me be clear at the outset that while the senator from Kentucky and I come to different conclusions with regard to the specific question as to whether we should allow section 215 of the Patriot Act to expire, I absolutely stand with the junior senator from Kentucky,” Lee said when he took the podium.
On Tuesday. Lee asked the Senate to table discussion of the trade bill to begin debating the USA Freedom Act. The move was blocked by an objection from Sen. Tom Cotton, R-Ark.
4: 17 p.m.: What do other Republican senators think of Paul’s “filibuster”? Some of Paul’s Republican colleagues attempted to downplay the significance of Paul taking over the Senate floor on Wednesday. “Oh that’ll be, you know, 12 hours, and he’ll get a lot of publicity for a day or so, but it won’t affect the process,” Sen. John McCain said Tuesday, when asked about Paul’s expected filibuster.
Republican leadership seemed relieved Paul chose to take the floor during dead time Wednesday, a move they anticipate may mean he won’t get in the way later this week when the chamber actually considers a Patriot Act extension. “I guess if he’s going to, doing it now as opposed to doing it on the weekend is maybe preferable,” Sen. John Thune told an AP reporter.
“I don’t think those inside Washington are listening very well,” Paul said during his speech, in apparent recognition of his colleagues’ unwillingness to let the NSA’s bulk call-records program lapse.
4:12 p.m.: “No Senators.” One headline that Sen. Paul wasn’t necessarily hoping for: a little bit into his speech, C-SPAN2 aired this chyron while the senator spoke:
3:46 p.m.: Backup is here, and it’s a Democrat. Sen. Ron Wyden, D-Ore., took the podium to relieve Paul more than two hours into Paul’s floor speech. Wyden is Paul’s partner in opposing a straight reauthorization of the Patriot Act, and he is the only other senator who has also promised to filibuster an extension of the NSA’s spying programs. “This will not be the last time we are back on the floor,” Wyden said as he took over for Paul.
Paul and Wyden are somewhat strange bedfellows, as Wyden has indicated he would vote for the reform package the House passed last week, known as the USA Freedom Act. Paul contends it does not go far enough. But the bipartisan pair is co-sponsoring a number of amendments they say will make the USA Freedom Act go farther in limiting the NSA’s surveillance powers.
“A number of us—myself specifically—have been concerned that the majority leader and other supporters of business as usual on bulk collection of all of these phone records would somehow try to take advantage of our current discussions and try to, in effect, sneak through a motion to extend section 215 of the USA Patriot Act,” Wyden said. “As long as the senator from Kentucky has the floor, that cannot happen.”
“My colleague from Kentucky has been an invaluable ally on this particular cause since he arrived in the Senate,” the Oregon Democrat continued.
3:41 p.m.: Hitler appears. It took a little over two hours for the first mention of Hitler during Paul’s speech. “Any time you make an analogy to horrific people in history, a Mussolini or a Hitler, people say, ‘Oh, you’re exaggerating, you’re talking about—it’s hyperbole. And maybe it is. And particularly to accuse anybody of that is a horrific analogy, and I’m not doing that,” Paul said. “But what I would say is that if you are not concerned that democracy could produce bad people, I don’t think you’re really thinking this through too much.”
3:20 p.m.: Paul goes after Graham. Paul attacked fellow Republican Sen. Lindsey Graham, R-S.C., for his characteristically hawkish views on surveillance and due process. Paul seized on Graham’s comment earlier this week about how he would deal with anyone who’s thinking about joining the Islamic State terrorist group.
“One senator said recently—i find this really hard to believe—he said, well, when they ask you for a judge, just drone them,” Paul said. “Ha ha. Same guy said when they ask you for a lawyer, tell them to shut up.”
Paul, who is a Republican candidate for president, has for weeks threatened that he would filibuster any attempt to reauthorize the Patriot Act authorities due to sunset on June 1. Although the Senate was not taking up votes Wednesday afternoon, a Paul spokesman called the speech a “filibuster” and said the Kentucky Republican “will speak until he can no longer speak.”
The timing of Paul’s speech took some observers by surprise, as the Senate has not yet moved to consider the Patriot Act and is still trudging through an ongoing fight over an international trade deal. Because Paul was not actually objecting to any specific vote, his speech does not appear to qualify as a formal filibuster.
Procedural votes could still come up later this week on the Freedom Act and McConnell’s short-term extension. But the Senate would likely need to stay through the weekend to get through the full process of voting on the opposing measures, as McConnell had not filed for cloture on either option by Tuesday.
Paul could further stall each vote and force the Senate to stay in town through the weekend. But his decision to eat up time on Wednesday likely indicates he does not want to cause party leaders that headache. Either way, the Senate almost certainly won’t resolve the matter before the House leaves town on Thursday, and an expiration of the Patriot Act’s spy provisions looks increasingly likely.
Paul opposes both McConnell’s push and the Freedom Act, which he says does not go far enough in ushering in surveillance reforms.
Paul’s stand against government surveillance comes as three provisions of the Patriot Act are due to expire on June 1, including Section 215, which the NSA uses to justify its bulk collection of U.S. call records.
(RELATED: Where the 2016 Republicans Stand on NSA Spying)
Congress has reauthorized the authorities in the past, but the current expiration is the first to occur after the Edward Snowden revelations, which began two years ago and publicly exposed for the first time the NSA’s phone dragnet.
Last week the House overwhelmingly passed a reform package called the USA Freedom Act, which would effectively end the NSA’s domestic phone records program. Instead, telephone companies would be relied on to keep the records and hand them over to the government on an as-needed basis after judicial approval is obtained from the Foreign Intelligence Surveillance Court.
But that measure has run hard into a wall in the upper chamber, where Senate Majority Leader Mitch McConnell and a number of GOP defense hawks have said it could jeopardize national security. McConnell and his flock prefer a “clean” reauthorization to the Patriot Act’s spying authorities, and have most recently pushed for a two-month extension to allow more time for debate.
Paul said his stand will force the Senate to debate the surveillance programs, which he says did not happen when the Patriot Act was first introduced in the weeks following the terrorist attacks of Sept. 11, 2001.
“The Patriot Act—I’m not sure unless we insert ourselves a at this moment that we’ll have any debate over it. It’s been set to expire for three years. We’ve known it was coming. And the question is, do we not have enough time because we just don’t care enough?”
In 2013, Paul famously spoke for 13 hours on the Senate floor on John Brennan’s nomination to run the CIA, attacking the nominee and the Obama administration for its drone policy.
Within twenty minutes of the beginning of Paul’s speech, his campaign sent an email to supporters asking for donations. “I will not rest. I will not back down. I will not yield one inch in this fight so long as my legs can stand,” the email, which was signed by Paul, read.
The campaign took a dig at senators eager to leave town for the long weekend. “It seems many of my colleagues here in the Senate care more about getting out of town for the Memorial Day break than protecting the Constitution so many American patriots have fought and died for,” the email said. “I have news for them. They are going NOWHERE.”
Quoting founding fathers and waxing philosophical on the importance of privacy, Paul called for President Obama to immediately issue an executive order to end the NSA’s surveillance programs.
(RELATED: On NSA Spying, Bernie Sanders, Not Elizabeth Warren, Is Pushing Hillary Clinton Let)
“For over a year now, he has said the program is illegal and yet he does nothing,” Paul said on the Senate floor. “He says, well, Congress can get rid of the Patriot Act. Congress can get rid of the bulk collection. And yet he has the power to do it at his fingertips.”
“He began this illegal program,” Paul continued. “The court has informed him that the program is illegal. He has every power to stop it and yet the president does nothing.”
Paul has said he would end the NSA’s surveillance programs were he elected president.
NSA shouldn’t keep phone database, review board recommends
By Ellen Nakashima and Ashkan Soltani
Read the report
A panel appointed by President Obama to review the government’s surveillance activities has recommended significant new limits on the nation’s intelligence apparatus that include ending the National Security Agency’s collection of virtually all Americans’ phone records.
It urged that phone companies or a private third party maintain the data instead, with access granted only by a court order.
The President’s Review Group on Intelligence and Communications Technologies also recommended in a wide-ranging report issued Wednesday that decisions to spy on foreign leaders be subjected to greater scrutiny, including weighing the diplomatic and economic fallout if operations are revealed. Allied foreign leaders or those with whom the United States shares a cooperative relationship should be accorded “a high degree of respect and deference,” it said.
The panel also urged legislation that would require the FBI to obtain judicial approval before it can use a national security letter or administrative subpoena to obtain Americans’ financial, phone and other records. That would eliminate one of the tool’s main attractions: that it can be employed quickly without court approval.
The review group also would impose a ban on warantless NSA searches for Americans’ phone calls and e-mails held within large caches of communications collected legally because the program targeted foreigners overseas.
A report from the five-member Review Group on Intelligence and Communications Technologies contains 40-plus recommendations on the NSA. Read it.
Taken together, the five-
member panel’s recommendations take aim at some of the most controversial practices of the intelligence community, in particular the 35,000-employee NSA, headquartered at Fort Meade, Md. The signals intelligence agency has been in the news constantly since June, when reports based on documents leaked by former NSA contractor Edward Snowden began appearing in The Washington Post and the Guardian.
The White House released the 300-plus-page report as part of a larger effort to restore public confidence in the intelligence community, which has been shaken by the Snowden revelations.
The panel said that the NSA’s storage of phone data “creates potential risks to public trust, personal privacy, and civil liberty” and that as a general rule, “the government should not be permitted to collect and store mass, undigested, non-public personal information” about Americans to be mined for foreign intelligence purposes.
Despite the proposed constraints, panel member Michael Morell, a former deputy director of the CIA, said, “We are not in any way recommending the disarming of the intelligence community.”
The panel made 46 recommendations in all, which included moving the NSA’s information assurance directorate — its computer defense arm — outside the agency and under the Defense Department’s cyber-policy office.
“The review committee has reaffirmed that national security neither requires nor permits the government to help itself to Americans’ personal information at will,” said Elizabeth Goitein, co-
director of the Brennan Center for Justice’s Liberty and National Security Program. “The recommendations would extend significant privacy protections to Americans.”
Some intelligence professionals were dismayed. “If adopted in bulk, the panel’s recommendations would put us back before 9/11 again,” said Joel F. Brenner, a former NSA inspector general.
Former NSA and CIA director Michael V. Hayden urged senior intelligence officials to lay out the operational costs of adopting the recommendations. “The responsibility is now in the intelligence community to be ruthlessly candid with the policy leadership,” Hayden said.
Obama met Wednesday morning with the panel, whose suggestions are advisory only, and some intelligence officials predicted that the most far-reaching recommendations, including ending the government collection and storage of bulk phone data, would not be adopted. The White House has said it will announce in January which ideas it has embraced, as it concludes its internal review of surveillance activities.
The NSA’s phone-records program has prompted debate about whether the government has overreached in the effort to prevent terrorist attacks. The review panel is urging that Congress pass legislation to end the NSA’s storage of phone records — estimated by some former officials to number more than 1 trillion — “as soon as reasonably practicable.”
If the data were held by phone companies or a private third party, access to them would be permitted only with an order from the Foreign Intelligence Surveillance Court, based on reasonable suspicion that the information sought is relevant to an authorized terrorism investigation. Each phone number would require a court order.
Currently, the NSA holds for five years the phone records it gathers daily from U.S. phone companies. These “metadata” include the numbers dialed and call times and durations, but not call content or subscriber names.
The review panel is not recommending that the phone companies maintaining the data store it any longer than they do now — periods that vary from as little as six months to 10 years.
In a ruling Monday on the collection program, U.S. District Judge Richard J. Leon described the technology used to search the NSA database as “almost Orwellian.” The judge said the collection was “almost certainly” unconstitutional.
“The combination of this report plus the judge’s decision Monday makes this a big week for the cause of intelligence reform,” said Sen. Ron Wyden (D-Ore.).
Moving custodianship of the records outside the NSA would diminish the agency’s agility in detecting terrorist plots, supporters of the current arrangement say. With companies holding data for different periods and in different formats, searching across them would become complicated, they argue.
But the panel said the collection program had not proved its utility. “Our review suggests that the information contributed to terrorist investigations by the use of . . . telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional [court] orders,” it said.
The review group urged that the public have a legal advocate before the Foreign Intelligence Surveillance Court.
Anthony D. Romero, executive director of the American Civil Liberties Union, said the recommendation to end NSA’s bulk collection “goes to the very heart of NSA dragnet surveillance.” He called it “the most necessary recommendation of the review group.”
The NSA’s information assurance directorate, which would be shifted out of the agency, protects classified government computer systems and works with industry to help them better safeguard their systems. That mission differs from the NSA’s job of breaking into systems overseas to gain intelligence, the panel said.
The suggested move, said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology, would “end NSA’s dual personality as a code-breaker and cybersecurity-enhancer. It’s good.”
But Tony Sager, a former NSA information assurance executive, said moving the defensive mission out of NSA was unwise. “The defensive mission benefits a lot from the technology and the skills of people who work on the offensive side of the house and vice versa,” he said. “They get better insight into the model of what real adversaries do.”
The panel also recommended a prohibition on the government “in any way”subverting or weakening commercial software in order to get around encryption and urged that it not undermine efforts to create encryption standards. The panel also said the government should add oversight to the use and production of “zero day” hacking tools that can be used to penetrate computer systems and, in some cases, damage or destroy them.
The security community has long been concerned that the NSA is building and buying hacking tools, but a Pentagon cyber-official, Eric Rosenbach, has said that the government discloses vulnerabilities it finds to software companies.
Matthew Blaze, a University of Pennsylvania cryptology expert, said disclosure “doesn’t mean that the government can’t or wouldn’t be able to make use of cyberattack techniques that involve exploiting computers.
Rand Paul Begins Filibuster Of Patriot Act
By ALEX PAPPAS
Kentucky Sen. Rand Paul is filibustering the Patriot Act on the Senate floor, and it doesn’t look like he’s going to stop anytime soon.
The Republican presidential candidate took control of the floor Wednesday afternoon at 1:18 p.m., simultaneously explaining on Twitter that he is filibustering the renewal of the Patriot Act because of the National Security Agency’s program that collects bulk phone record data of American citizens.
“The government shouldn’t have the ability to get that information unless they have suspicion,” Paul said on the floor Wednesday. “Unless they have probable cause you committed a crime.”
In an campaign email to supporters, posted online by a reporter from Time magazine, Paul said: “I will not rest. I will not back down. I will not yield one inch in this fight so long as my legs can stand.”
Here’s how a Paul campaign aide described the marathon speech: “Senator Rand Paul has taken the floor of the U.S. Senate to filibuster the reauthorization of the Patriot Act. Senator Paul is a staunch defender of liberty and believes Americans have a right to privacy. The U.S. government has no place conducting these warrantless searches and should focus on gathering intelligence on suspected terrorists and foreign actors.”
On Monday, Paul previewed the filibuster, holding a press conference in Philadelphia and calling on Obama to end the NSA’s program.
“Here in front of Independence Hall, I call for the president to obey the law,” he said Monday. “The court said last week that it is illegal to collect all of your phone records, all of the time, without a warrant with your name on it. I call on the president today to immediately end the bulk collection of our phone records.”
Asked on Monday whether he would filibuster the upcoming vote on the extension of the Patriot Act, which the NSA uses to carry out the bulk collection program, Paul told reporters: “I will do everything possible. The rules are tricky in the Senate, so I don’t know what I can promise. But we will do everything possible, including filibustering the Patriot Act, to stop that.”
This isn’t Paul’s first filibuster: in 2013, he filibustered the nomination of John Brennan as director of the CIA for 13 hours, talking about drones and the Bill of Rights.
The USA PATRIOT Act is an Act of Congress that was signed into law by President George W. Bush on October 26, 2001. Its title is a ten-letter backronym (USA PATRIOT) that stands for “Uniting andStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001″.
On May 26, 2011, President Barack Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretaps, searches of business records (the “library records provision“), and conducting surveillance of “lone wolves”—individuals suspected of terrorist-related activities not linked to terrorist groups.
From broad concern felt among Americans from both the September 11 attacks and the 2001 anthrax attacks, Congress rushed to pass legislation to strengthen security controls. On October 23, 2001, Republican Rep. Jim Sensenbrenner introduced H.R. 3162 incorporating provisions from a previously sponsored House bill and a Senate bill also introduced earlier in the month. The next day on October 24, 2001, the Act passed the House 357 to 66, with Democrats comprising the overwhelming portion of dissent. The following day, on October 25, 2001, the Act passed the Senate by 98 to 1.
Opponents of the law have criticized its authorization of indefinite detentions of immigrants; the permission given law enforcement officers to search a home or business without the owner’s or the occupant’s consent or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, e-mail, and financial records without a court order; and the expanded access of law enforcement agencies to business records, including library and financial records. Since its passage, several legal challenges have been brought against the act, and Federal courts have ruled that a number of provisions are unconstitutional.
Many provisions of the act were to sunset beginning December 31, 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several sections of the act, while the House reauthorization bill kept most of the act’s original language. The two bills were then reconciled in a conference committee that was criticized by Senators from both the Republican and Democratic parties for ignoring civil liberty concerns.
The bill, which removed most of the changes from the Senate version, passed Congress on March 2, 2006, and was signed into law by President George W. Bush on March 9 and 10, 2006.
The PATRIOT Act made a number of changes to U.S. law. Key acts changed were the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act. The Act itself came about after the September 11th attacks on New York City and the Pentagon. After these attacks, Congress immediately started work on several proposed antiterrorist bills, before the Justice Department finally drafted a bill called the Anti-Terrorism Act of 2001, introduced to Congress on September 19, 2001. This was introduced to the House as the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001, and was later passed by the House as the Uniting and Strengthening America (USA) Act (H.R. 2975) on October 12. It was then introduced into the Senate as the USA Act (S. 1510) where a number of amendments were proposed by SenatorRuss Feingold, all of which were passed. The final bill, the USA PATRIOT Act was introduced into the House on October 23 and incorporated H.R. 2975, S. 1510 and many of the provisions of H.R. 3004 (the Financial Anti-Terrorism Act). It was vehemently opposed by only one Senator, Russ Feingold, who was the only Senator to vote against the bill. Senator Patrick Leahy also expressed some concerns.However, many parts were seen as necessary by both detractors and supporters. The final Act included a number of sunsets which were to expire on December 15, 2005.
Due to its controversial nature, a number of bills – none of which were passed – were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act, the Benjamin Franklin True Patriot Act, and the Security and Freedom Ensured Act (SAFE). In late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003. This highly controversial document was quickly dubbed “PATRIOT II” or “Son of PATRIOT” by the media and organizations such as the Electronic Frontier Foundation. The draft, which was circulated to 10 divisions of the Department of Justice,proposed to make further extensive modifications to extend the USA PATRIOT Act. It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.
Title I: Enhancing domestic security against terrorism
Title I authorizes measures to enhance the ability of domestic security services to prevent terrorism. The title established a fund for counter-terrorist activities and increased funding for the Terrorist Screening Center which is administered by the FBI. The military was authorized to provide assistance in some situations that involve weapons of mass destruction when so requested by the Attorney General. The National Electronic Crime Task Force was expanded, along with thePresident‘s authority and abilities in cases of terrorism. The title also condemned the discrimination against Arab and Muslim Americans that happened soon after the September 11 terrorist attacks. The impetus for many of the provisions came from earlier bills, for instance the condemnation of discrimination was originally proposed by Senator Tom Harkin (D–IA) in an amendment to the Combatting Terrorism Act of 2001, though in a different form. It originally included “the prayer ofCardinal Theodore McCarrick, the Archbishop of Washington in a Mass on September 12, 2001 for our Nation and the victims in the immediate aftermath of the terrorist hijackings and attacks in New York City, Washington, D.C., and Pennsylvania reminds all Americans that ‘We must seek the guilty and not strike out against the innocent or we become like them who are without moral guidance or proper direction.'” Further condemnation of racial vilification and violence is also spelled out in Title X, where there was condemnation of such activities against Sikh Americans, who were mistaken for Muslims after the September 11th terrorist attack.
Title II: Surveillance procedures
Title II is titled “Enhanced Surveillance Procedures”, and covers all aspects of the surveillance of suspected terrorists, those suspected of engaging in computer fraud or abuse, and agents of a foreign power who are engaged in clandestine activities. It primarily made amendments to FISA, and the ECPA, and many of the most controversial aspects of the USA PATRIOT Act reside in this title. In particular, the title allows government agencies to gather “foreign intelligence information” from both U.S. and non-U.S. citizens, and changed FISA to make gaining foreign intelligence information the significant purpose of FISA-based surveillance, where previously it had been the primary purpose. The change in definition was meant to remove a legal “wall” between criminal investigations and surveillance for the purposes of gathering foreign intelligence, which hampered investigations when criminal and foreign surveillance overlapped. However, that this wall even existed was found by the Federal Surveillance Court of Review to have actually been a long-held misinterpretation by government agencies. Also removed was the statutory requirement that the government prove a surveillance target under FISA is a non-U.S. citizen and agent of a foreign power, though it did require that any investigations must not be undertaken on citizens who are carrying out activities protected by the First Amendment. The title also expanded the duration of FISA physical search and surveillance orders, and gave authorities the ability to share information gathered before a federal grand jury with other agencies.
The scope and availability of wiretapping and surveillance orders were expanded under Title II. Wiretaps were expanded to include addressing and routing information to allow surveillance of packet switched networks—the Electronic Privacy Information Center (EPIC) objected to this, arguing that it does not take into account email or web addresses, which often contain content in the address information. The Act allowed any district court judge in the United States to issue such surveillance orders and search warrants for terrorism investigations. Search warrants were also expanded, with the Act amending Title III of the Stored Communications Access Act to allow the FBI to gain access to stored voicemail through a search warrant, rather than through the more stringent wiretap laws.
Various provisions allowed for the disclosure of electronic communications to law enforcement agencies. Those who operate or own a “protected computer” can give permission for authorities to intercept communications carried out on the machine, thus bypassing the requirements of the Wiretap statute. The definition of a “protected computer” is defined in 18 U.S.C. § 1030(e)(2) and broadly encompasses those computers used in interstate or foreign commerce or communication, including ones located outside the United States. The law governing obligatory and voluntary disclosure of customer communications by cablecompanies was altered to allow agencies to demand such communications under U.S.C. Title 18 provisions relating to the disclosure of electronic communications (chapter 119), pen registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits. Subpoenas issued to Internet Service Providers were expanded to include not only “the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber” but also session times and durations, types of services used, communication device address information (e.g. IP addresses), payment method and bank account and credit card numbers. Communication providers are also allowed to disclose customer records or communications if they suspect there is a danger to “life and limb”.
Title II established three very controversial provisions: “sneak and peek” warrants, roving wiretaps and the ability of the FBI to gain access to documents that reveal the patterns of U.S. citizens. The so-called “sneak and peek” law allowed for delayed notification of the execution of search warrants. The period before which the FBI must notify the recipients of the order was unspecified in the Act—the FBI field manual says that it is a “flexible standard”—and it may be extended at the court’s discretion. These sneak and peek provisions were struck down by judge Ann Aiken on September 26, 2007 after a Portland attorney, Brandon Mayfield, was wrongly jailed because of the searches. The court found the searches to violate the provision that prohibits unreasonable searches in the Fourth Amendment to the U.S. Constitution.
Roving wiretaps are wiretap orders that do not need to specify all common carriers and third parties in a surveillance court order. These are seen as important by the Department of Justice because they believe that terrorists can exploit wiretap orders by rapidly changing locations and communication devices such as cell phones, while opponents see it as violating the particularity clause of the Fourth Amendment. Another highly controversial provision is one that allows the FBI to make an order “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” Though it was not targeted directly at libraries, the American Library Association (ALA), in particular, opposed this provision. In a resolution passed on June 29, 2005, they stated that “Section 215 of the USA PATRIOT Act allows the government to secretly request and obtain library records for large numbers of individuals without any reason to believe they are involved in illegal activity.” However, the ALA’s stance did not go without criticism. One prominent critic of the ALA’s stance was the Manhattan Institute‘s Heather Mac Donald, who argued in an article for the New York City Journal that “[t]he furor over section 215 is a case study in Patriot Act fear-mongering.”
The title also covers a number of other miscellaneous provisions, including the expansion of the number of FISC judges from seven to eleven (three of which must reside within 20 miles (32 km) of the District of Columbia), trade sanctions against North Korea and Taliban-controlled Afghanistan and the employment oftranslators by the FBI.
At the insistence of Republican Representative Richard Armey, the Act had a number of sunset provisions built in, which were originally set to expire on December 31, 2005. The sunset provision of the Act also took into account any ongoing foreign intelligence investigations and allowed them to continue once the sections had expired. The provisions that were to expire are below.
Title II sections that were to originally expire on December 31, 2005
||Authority to intercept wire, oral, and electronic communications relating to terrorism
||Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses
||Authority to share electronic, wire and oral interception information
||Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications
||Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.
||Duration of FISA surveillance of non-United States persons who are agents of a foreign power
||Seizure of voice-mail messages pursuant to warrants
||Emergency disclosure of electronic communications to protect life and limb
||Pen register and trap and trace authority under FISA
||Access to records and other items under the Foreign Intelligence Surveillance Act.
||Interception of computer trespasser communications
||Foreign intelligence information
||Nationwide service of search warrants for electronic evidence
||Civil liability for certain unauthorized disclosures
||Immunity for compliance with FISA wiretap
Title III: Anti-money-laundering to prevent terrorism
Title III of the Act, titled “International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001,” is intended to facilitate the prevention, detection and prosecution of international money laundering and the financing of terrorism. It primarily amends portions of the Money Laundering Control Act of 1986 (MLCA) and the Bank Secrecy Act of 1970 (BSA). It was divided into three subtitles, with the first dealing primarily with strengthening banking rules against money laundering, especially on the international stage. The second attempts to improve communication between law enforcement agencies and financial institutions, as well as expanding record keeping and reporting requirements. The third subtitle deals with currency smuggling and counterfeiting, including quadrupling the maximum penalty for counterfeiting foreign currency.
The first subtitle tightened the record keeping requirements for financial institutions, making them record the aggregate amounts of transactions processed from areas of the world where money laundering is a concern to the U.S. government. It also made institutions put into place reasonable steps to identify beneficial owners of bank accounts and those who are authorized to use or route funds through payable-through accounts. The U.S. Treasury was charged with formulating regulations intended to foster information sharing between financial institutions to prevent money-laundering. Along with expanding record keeping requirements it put new regulations into place to make it easier for authorities to identify money laundering activities and to make it harder for money launderers to mask their identities. If money laundering was uncovered, the subtitle legislated for the forfeiture of assets of those suspected of doing the money laundering.In an effort to encourage institutions to take steps that would reduce money laundering, the Treasury was given authority to block mergers of bank holding companies and banks with other banks and bank holding companies that had a bad history of preventing money laundering. Similarly, mergers between insured depository institutions and non-insured depository institutions that have a bad track record in combating money-laundering could be blocked.
Restrictions were placed on accounts and foreign banks. It prohibited shell banks that are not an affiliate of a bank that has a physical presence in the U.S. or that are not subject to supervision by a banking authority in a non-U.S. country. It also prohibits or restricts the use of certain accounts held at financial institutions.Financial institutions must now undertake steps to identify the owners of any privately owned bank outside the U.S. who have a correspondent account with them, along with the interests of each of the owners in the bank. It is expected that additional scrutiny will be applied by the U.S. institution to such banks to make sure they are not engaging in money laundering. Banks must identify all the nominal and beneficial owners of any private bank account opened and maintained in the U.S. by non-U.S. citizens. There is also an expectation that they must undertake enhanced scrutiny of the account if it is owned by, or is being maintained on behalf of, any senior political figure where there is reasonable suspicion of corruption. Any deposits made from within the U.S. into foreign banks are now deemed to have been deposited into any interbank account the foreign bank may have in the U.S. Thus any restraining order, seizure warrant or arrest warrant may be made against the funds in the interbank account held at a U.S. financial institution, up to the amount deposited in the account at the foreign bank. Restrictions were placed on the use of internal bank concentration accounts because such accounts do not provide an effective audit trail for transactions, and this may be used to facilitate money laundering. Financial institutions are prohibited from allowing clients to specifically direct them to move funds into, out of, or through a concentration account, and they are also prohibited from informing their clients about the existence of such accounts. Financial institutions are not allowed to provide any information to clients that may identify such internal accounts. Financial institutions are required to document and follow methods of identifying where the funds are for each customer in a concentration account that co-mingles funds belonging to one or more customers.
The definition of money laundering was expanded to include making a financial transaction in the U.S. in order to commit a violent crime; the bribery of public officials and fraudulent dealing with public funds; the smuggling or illegal export of controlled munition and the importation or bringing in of any firearm or ammunition not authorized by the U.S. Attorney General and the smuggling of any item controlled under the Export Administration Regulations. It also includes any offense where the U.S. would be obligated under a mutual treaty with a foreign nation to extradite a person, or where the U.S. would need to submit a case against a person for prosecution because of the treaty; the import of falsely classified goods; computer crime; and any felony violation of the Foreign Agents Registration Act of 1938. It also allows the forfeiture of any property within the jurisdiction of the United States that was gained as the result of an offense against a foreign nation that involves the manufacture, importation, sale, or distribution of a controlled substance. Foreign nations may now seek to have a forfeiture or judgment notification enforced by a district court of the United States. This is done through new legislation that specifies how the U.S. government may apply for a restraining order to preserve the availability of property which is subject to a foreign forfeiture or confiscation judgement. In taking into consideration such an application, emphasis is placed on the ability of a foreign court to follow due process. The Act also requires the Secretary of Treasury to take all reasonable steps to encourage foreign governments make it a requirement to include the name of the originator in wire transfer instructions sent to the United States and other countries, with the information to remain with the transfer from its origination until the point of disbursement. The Secretary was also ordered to encourage international cooperation in investigations of money laundering, financial crimes, and the finances of terrorist groups.
The Act also introduced criminal penalties for corrupt officialdom. An official or employee of the government who acts corruptly—as well as the person who induces the corrupt act—in the carrying out of their official duties will be fined by an amount that is not more than three times the monetary equivalent of the bribe in question. Alternatively they may be imprisoned for not more than 15 years, or they may be fined and imprisoned. Penalties apply to financial institutions who do not comply with an order to terminate any corresponding accounts within 10 days of being so ordered by the Attorney General or the Secretary of Treasury. The financial institution can be fined $US10,000 for each day the account remains open after the 10 day limit has expired.
The second annotation made a number of modifications to the BSA in an attempt to make it harder for money launderers to operate and easier for law enforcement and regulatory agencies to police money laundering operations. One amendment made to the BSA was to allow the designated officer or agency who receivessuspicious activity reports to notify U.S. intelligence agencies. A number of amendments were made to address issues related to record keeping and financial reporting. One measure was a new requirement that anyone who does business file a report for any coin and foreign currency receipts that are over US$10,000 and made it illegal to structure transactions in a manner that evades the BSA’s reporting requirements. To make it easier for authorities to regulate and investigate anti-money laundering operations Money Services Businesses (MSBs)—those who operate informal value transfer systems outside of the mainstream financial system—were included in the definition of a financial institution. The BSA was amended to make it mandatory to report suspicious transactions and an attempt was made to make such reporting easier for financial institutions. FinCEN was made a bureau of the United States Department of Treasury and the creation of a secure network to be used by financial institutions to report suspicious transactions and to provide alerts of relevant suspicious activities was ordered. Along with these reporting requirements, a considerable number of provisions relate to the prevention and prosecution of money-laundering.Financial institutions were ordered to establish anti-money laundering programs and the BSA was amended to better define anti-money laundering strategy. Also increased were civil and criminal penalties for money laundering and the introduction of penalties for violations of geographic targeting orders and certain record-keeping requirements. A number of other amendments to the BSA were made through subtitle B, including granting the Board of Governors of the Federal Reserve System power to authorize personnel to act as law enforcement officers to protect the premises, grounds, property and personnel of any U.S. National reserve bank and allowing the Board to delegate this authority to U.S. Federal reserve bank. Another measure instructed United States Executive Directors of international financial institutions to use their voice and vote to support any country that has taken action to support the U.S.’s War on Terrorism. Executive Directors are now required to provide ongoing auditing of disbursements made from their institutions to ensure that no funds are paid to persons who commit, threaten to commit, or support terrorism.
The third subtitle deals with currency crimes. Largely because of the effectiveness of the BSA, money launders had been avoiding traditional financial institutions to launder money and were using cash-based businesses to avoid them. A new effort was made to stop the laundering of money through bulk currency movements, mainly focusing on the confiscation of criminal proceeds and the increase in penalties for money laundering. Congress found that a criminal offense of merely evading the reporting of money transfers was insufficient and decided that it would be better if the smuggling of the bulk currency itself was the offense. Therefore, the BSA was amended to make it a criminal offense to evade currency reporting by concealing more than US$10,000 on any person or through any luggage, merchandise or other container that moves into or out of the U.S. The penalty for such an offense is up to 5 years imprisonment and the forfeiture of any property up to the amount that was being smuggled. It also made the civil and criminal penalty violations of currency reporting cases be the forfeiture of all a defendant’s property that was involved in the offense, and any property traceable to the defendant. The Act prohibits and penalizes those who run unlicensed money transmitting businesses. In 2005, this provision of the USA PATRIOT Act was used to prosecute Yehuda Abraham for helping to arrange money transfers for British arms dealer Hermant Lakhani, who was arrested in August 2003 after being caught in a government sting. Lakhani had tried to sell a missile to an FBI agent posing as a Somali militant. The definition of counterfeiting was expanded to encompass analog, digital or electronic image reproductions, and it was made an offense to own such a reproduction device. Penalties were increased to 20 years imprisonment. Money laundering “unlawful activities” was expanded to include the provision of material support or resources to designated foreign terrorist organizations. The Act specifies that anyone who commits or conspires to undertake a fraudulent activity outside the jurisdiction of the United States, and which would be an offense in the U.S., will be prosecuted under 18 U.S.C. § 1029, which deals with fraud and related activity in connection with access devices.
Title IV: Border security
Title IV amends the Immigration and Nationality Act of 1952 to give more law enforcement and investigative power to the United States Attorney General and to theImmigration and Naturalization Service (INS). The Attorney General was authorized to waive any cap on the number of full-time employees (FTEs) assigned to the INS on the Northern border of the United States. Enough funds were set aside to triple the maximum number of Border Patrol personnel, Customs Service personnel and INS inspectors along with an additional US$50,000,000 funding for the INS and the U.S. Customs Service to improve technology for monitoring the Northern Border and acquiring additional equipment at the Canadian northern border. The INS was also given the authority to authorize overtime payments of up to an extra US$30,000 a year to INS employees. Access was given to the Department of State and the INS to criminal background information contained in the National Crime Information Center’s Interstate Identification Index (NCIC-III), Wanted Persons File and any other files maintained by the National Crime Information Center to determine whether visa applicants and applicants could be admitted to the U.S. The Department of State was required to form final regulations governing the procedures for taking fingerprints and the conditions with which the department was allowed to use this information. Additionally, theNational Institute of Standards and Technology (NIST) was ordered to develop a technology standard to verify the identity of persons applying for a United States visa. The reason was to make the standard the technology basis for a cross-agency, cross-platform electronic system used for conducting background checks, confirming identities and ensuring that people have not received visas under different names. This report was released on November 13, 2002, however, according to NIST, this was later “determined that the fingerprint system used was not as accurate as current state-of-the-art fingerprint systems and is approximately equivalent to commercial fingerprint systems available in 1998.” This report was later superseded by section 303(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002.
Under subtitle C, various definitions relating to terrorism were altered and expanded. The INA was retroactively amended to disallow aliens who are part of or representatives of a foreign organization or any group who endorses acts of terrorism from entering the U.S. This restriction also included the family of such aliens. The definition of “terrorist activity” was strengthened to include actions involving the use of any dangerous device (and not just explosives and firearms). To “engage in terrorist activity” is defined as committing, inciting to commit or planning and preparing to undertake an act of terrorism. Included in this definition is the gathering of intelligence information on potential terrorist targets, the solicitation of funds for a terrorist organization or the solicitation of others to undertake acts of terrorism. Those who provide knowing assistance to a person who is planning to perform such activities are defined as undertaking terrorist activities. Such assistance includes affording material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training to perform the terrorist act. The INA criteria for making a decision to designate an organization as a terrorist organization was amended to include the definition of a terrorist act. Though the amendments to these definitions are retroactive, it does not mean that it can be applied to members who joined an organization, but since left, before it was designated to be a terrorist organization under 8 U.S.C. § 1189 by the Secretary of State.
The Act amended the INA to add new provisions enforcing mandatory detention laws. These apply to any alien who is engaged in terrorism, or who is engaged in an activity that endangers U.S. national security. It also applies to those who are inadmissible or who must be deported because it is certified they are attempting to enter to undertake illegal espionage; are exporting goods, technology, or sensitive information illegally; or are attempting to control or overthrow the government; or have, or will have, engaged in terrorist activities. The Attorney General or the Attorney General’s deputy may maintain custody of such aliens until they are removed from the U.S., unless it is no longer deemed they should be removed, in which case they are released. The alien can be detained for up to 90 days but can be held up to six months after it is deemed that they are a national security threat. However, the alien must be charged with a crime or removal proceedings start no longer than seven days after the alien’s detention, otherwise the alien will be released. However, such detentions must be reviewed every six months by the Attorney General, who can then decide to revoke it, unless prevented from doing so by law. Every six months the alien may apply, in writing, for the certification to be reconsidered. Judicial review of any action or decision relating to this section, including judicial review of the merits of a certification, can be held underhabeas corpus proceedings. Such proceedings can be initiated by an application filed with the United States Supreme Court, by any justice of the Supreme Court, by any circuit judge of the United States Court of Appeals for the District of Columbia Circuit, or by any district court otherwise having jurisdiction to entertain the application. The final order is subject to appeal to the United States Court of Appeals for the District of Columbia Circuit. Provisions were also made for a report to be required every six months of such decisions from the U.S. Attorney General to the Committee on the Judiciary of the House of Representatives and theCommittee on the Judiciary of the Senate.
A sense of Congress was given that the U.S. Secretary of State should expedite the full implementation of the integrated entry and exit data system for airports, seaports, and land border ports of entry specified in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). They also found that the U.S. Attorney General should immediately start the Integrated Entry and Exit Data System Task Force specified in section 3 of the Immigration and Naturalization Service Data Management Improvement Act of 2000. Congress wanted the primary focus of development of the entry-exit data system was to be on the utilization of biometric technology and the development of tamper-resistant documents readable at ports of entry. They also wanted the system to be able to interface with existing law enforcement databases. The Attorney General was ordered to implement and expand the foreign student monitoring program that was established under section 641(a) of the IIRIRA. which records the date and port of entry of each foreign student. The program was expanded to include other approved educational institutions, including air flight schools, language training schools or vocational schools that are approved by the Attorney General, in consultation with the Secretary of Education and the Secretary of State. US$36,800,000 was appropriated for the Department of Justice to spend on implementing the program.
The Secretary of State was ordered to audit and report back to Congress on the Visa waiver program specified under 8 U.S.C. § 1187 for each fiscal year until September 30, 2007. The Secretary was also ordered to check for the implementation of precautionary measures to prevent the counterfeiting and theft of passports as well as ascertain that countries designated under the visa waiver program have established a program to develop tamper-resistant passports. The Secretary was also ordered to report back to Congress on whether consulate shopping was a problem.
The last subtitle, which was introduced by Senators John Conyers and Patrick Leahy, allows for the preservation of immigration benefits for victims of terrorism, and the families of victims of terrorism. They recognized that some families, through no fault of their own, would either be ineligible for permanent residence in the United States because of being unable to make important deadlines because of the September 11 terrorist attacks, or had become ineligible to apply for special immigration status because their loved one died in the attacks.
Title V: Removing obstacles to investigating terrorism
It allows the U.S. Attorney General to pay rewards pursuant of advertisements for assistance to the Department of Justice to combat terrorism and prevent terrorist acts, though amounts over $US250,000 may not be made or offered without the personal approval of the Attorney General or President, and once the award is approved the Attorney General must give written notice to the Chairman and ranking minority members of the Committee on Appropriations and the Judiciary of the Senate and of the House of Representatives. The State Department Basic Authorities Act of 1956 was amended to allow the Department of State to offer rewards, in consultation with the Attorney General, for the full or significant dismantling of any terrorist organization and to identify any key leaders of terrorist organizations. The Secretary of State was given authority to pay greater than $US5 million if he so determines it would prevent terrorist actions against the United States and Canada. The DNA Analysis Backlog Elimination Act was amended to include terrorism or crimes of violence in the list of qualifying Federal offenses. Another perceived obstacle was to allow Federal agencies to share information with Federal law enforcement agencies. Thus, the act now allows Federal officers who acquire information through electronic surveillance or physical searches to consult with Federal law enforcement officers to coordinate efforts to investigate or protect against potential or actual attacks, sabotage or international terrorism or clandestine intelligence activities by an intelligence service or network of a foreign power.
Secret Service jurisdiction was extended to investigate computer fraud, access device frauds, false identification documents or devices, or any fraudulent activities against U.S. financial institutions. The General Education Provisions Act was amended to allow the U.S. Attorney General or Assistant Attorney General to collect and retain educational records relevant to an authorized investigation or prosecution of an offense that is defined as a Federal crime of terrorism and which an educational agency or institution possesses. The Attorney General or Assistant Attorney General must “certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information [that a Federal crime of terrorism may be being committed].” An education institution that produces education records in response to such a request is given legal immunity from any liability that rises from such a production of records.
One of the most controversial aspects of the USA PATRIOT Act is in title V, and relates to National Security Letters (NSLs). An NSL is a form of administrative subpoena used by the FBI, and reportedly by other U.S. government agencies including the CIA and the Department of Defense (DoD). It is a demand letter issued to a particular entity or organization to turn over various records and data pertaining to individuals. They require no probable cause or judicial oversight and also contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued. Title V allowed the use of NSLs to be made by a Special Agent in charge of a Bureau field office, where previously only the Director or the Deputy Assistant Director of the FBI were able to certify such requests. This provision of the Act was challenged by the ACLU on behalf of an unknown party against the U.S. government on the grounds that NSLs violate the First and Fourth Amendments of the U.S. Constitution because there is no way to legally oppose an NSL subpoena in court, and that it was unconstitutional not to allow a client to inform their Attorney as to the order because of the gag provision of the letters. The court’s judgement found in favour of the ACLU’s case, and they declared the law unconstitutional. Later, the USA PATRIOT Act was reauthorized and amendments were made to specify a process of judicial review of NSLs and to allow the recipient of an NSL to disclose receipt of the letter to an attorney or others necessary to comply with or challenge the order. However, in 2007 the U.S. District Court struck down even the reauthorized NSLs because the gag power was unconstitutional as courts could still not engage in meaningful judicial review of these gags.
Title VI: Victims and families of victims of terrorism
Title VI made amendments to the Victims of Crime Act of 1984 (VOCA) in order to make changes to how the U.S. Victims of Crime Fund was managed and funded. Changes were made to VOCA to improve the speedy provision of aid to families of public safety officers by expedited payments to officers or the families of officers. Under the changes, payments must be made no later than 30 days after the officer is injured or killed in the line of duty. The Assistant Attorney General was given expanded authority under section 614 of the USA PATRIOT Act to make grants to any organization that administers any Office of Justice Programs, which includes the Public Safety Officers Benefits Program. Further changes to the Victims of Crime Fund increased the amount of money in the Fund, and changed the way that funds were distributed. The amount available for grants made through the Crime Victim Fund to eligible crime victim compensation programs were increased from 40 percent to 60 percent of the total in the Fund. A program can provide compensation to U.S. citizens who were adversely affected overseas.Means testing was also waived for those who apply for compensation. Under VOCA, the Director may make an annual grant from the Crime Victims Fund to support crime victim assistance programs. An amendment was made to VOCA to include offers of assistance to crime victims in the District of Columbia, theCommonwealth of Puerto Rico, the United States Virgin Islands, and any other U.S. territory. VOCA also provides for compensation and assistance to victims of terrorism or mass violence. This was amended to allow the Director to make supplemental grants to States for eligible crime victim compensation and assistance programs, and to victim service organizations, public agencies (including Federal, State, or local governments) and non-governmental organizations that provide assistance to victims of crime. The funds could be used to provide emergency relief, including crisis response efforts, assistance, compensation, training and technical assistance for investigations and prosecutions of terrorism.
Title VII: Increased information sharing for critical infrastructure protection
Title VII has one section. The purpose of this title is to increase the ability of U.S. law enforcement to counter terrorist activity that crosses jurisdictional boundaries. It does this by amending the Omnibus Crime Control and Safe Streets Act of 1968 to include terrorism as a criminal activity.
Title VIII: Terrorism criminal law
Title VIII alters the definitions of terrorism, and establishes or re-defines rules with which to deal with it. It redefined the term “domestic terrorism” to broadly include mass destruction as well as assassination or kidnapping as a terrorist activity. The definition also encompasses activities that are “dangerous to human life that are a violation of the criminal laws of the United States or of any State” and are intended to “intimidate or coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or are undertaken “to affect the conduct of a government by mass destruction, assassination, or kidnapping” while in the jurisdiction of the United States. Terrorism is also included in the definition of racketeering. Terms relating to cyber-terrorism are also redefined, including the term “protected computer,” “damage,” “conviction,” “person,” and “loss.”
New penalties were created to convict those who attack mass transportation systems. If the offender committed such an attack while no passenger was on board, they are fined and imprisoned for a maximum of 20 years. However, if the activity was undertaken while the mass transportation vehicle or ferry was carrying a passenger at the time of the offense, or the offense resulted in the death of any person, then the punishment is a fine and life imprisonment. The title amends the biological weapons statute to define the use of a biological agent, toxin, or delivery system as a weapon, other than when it is used for “prophylactic, protective,bona fide research, or other peaceful purposes.” Penalties for anyone who cannot prove reasonably that they are using a biological agent, toxin or delivery system for these purposes are 10 years imprisonment, a fine or both.
A number of measures were introduced in an attempt to prevent and penalize activities that are deemed to support terrorism. It was made a crime to harbor or conceal terrorists, and those who do are subject to a fine or imprisonment of up to 10 years, or both. U.S. forfeiture law was also amended to allow authorities to seize all foreign and domestic assets from any group or individual that is caught planning to commit acts of terrorism against the U.S. or U.S. citizens. Assets may also be seized if they have been acquired or maintained by an individual or organization for the purposes of further terrorist activities. One section of the Act (section 805) prohibited “material support” for terrorists, and in particular included “expert advice or assistance.” This was struck down as unconstitutional by aU.S. Federal Court after the Humanitarian Law Project filed a civil action against the U.S. government. The court found that it violated the First and Fifth Amendments to the United States Constitution and the provision was so vague it would cause a person of average intelligence to have to guess whether they were breaking the law, thus leading to a potential situation where a person was charged for an offense that they had no way of knowing was illegal. The court found that this could potentially have the effect of allowing arbitrary and discriminatory enforcement of the law, as well as possible chilling effects on First Amendment rights. Congress later improved the law by defining the definitions of the “material support or resources,” “training,” and “expert advise or resources.”
Cyberterrorism was dealt with in various ways. Penalties apply to those who either damage or gain unauthorized access to a protected computer and then commit a number of offenses. These offenses include causing a person to lose an aggregate amount greater than US$5,000, as well as adversely affecting someone’s medical examination, diagnosis or treatment. It also encompasses actions that cause a person to be injured, a threat to public health or safety, or damage to a governmental computer that is used as a tool to administer justice, national defense or national security. Also prohibited was extortion undertaken via a protected computer. The penalty for attempting to damage protected computers through the use of viruses or other software mechanism was set to imprisonment for up to 10 years, while the penalty for unauthorized access and subsequent damage to a protected computer was increased to more than five years imprisonment. However, should the offense occur a second time, the penalty increases up to 20 years imprisonment. The act also specified the development and support of cybersecurity forensic capabilities. It directs the Attorney General to establish regional computer forensic laboratories that have the capability of performing forensic examinations of intercepted computer evidence relating to criminal activity and cyberterrorism, and that have the capability of training and educating Federal, State, and local law enforcement personnel and prosecutors in computer crime, and to “facilitate and promote the sharing of Federal law enforcement expertise and information about the investigation, analysis, and prosecution of computer-related crime with State and local law enforcement personnel and prosecutors, including the use of multijurisdictional task forces.” The sum of $50,000,000 was authorized for establishing such labs.
Title IX: Improved intelligence
Title IX amends the National Security Act of 1947 to require the Director of Central Intelligence (DCI) to establish requirements and priorities for foreign intelligence collected under FISA and to provide assistance to the United States Attorney General to ensure that information derived from electronic surveillance or physical searches is disseminated for efficient and effective foreign intelligence purposes. With the exception of information that might jeopardize an ongoing law enforcement investigation, it was made a requirement that the Attorney General, or the head of any other department or agency of the Federal Government with law enforcement responsibilities, disclose to the Director any foreign intelligence acquired by the U.S. Department of Justice. The Attorney General and Director of Central Intelligence were directed to develop procedures for the Attorney General to follow in order to inform the Director, in a timely manner, of any intention of investigating criminal activity of a foreign intelligence source or potential foreign intelligence source based on the intelligence tip-off of a member of the intelligence community. The Attorney General was also directed to develop procedures on how to best administer these matters. International terrorist activities were made to fall within the scope of foreign intelligence under the National Security Act.
A number of reports were commissioned relating to various intelligence-related government centers. One was commissioned into the best way of setting up theNational Virtual Translation Center, with the goal of developing automated translation facilities to assist with the timely and accurate translation of foreign intelligence information for elements of the U.S. intelligence community. The USA PATRIOT Act required this to be provided on February 1, 2002, however the report, entitled “Director of Central Intelligence Report on the National Virtual Translation Center: A Concept Plan to Enhance the Intelligence Community’s Foreign Language Capabilities, April 29, 2002″ was received more than two months late, which the Senate Select Committee on Intelligence reported was “a delay which, in addition to contravening the explicit words of the statute, deprived the Committee of timely and valuable input into its efforts to craft this legislation.” Another report was commissioned on the feasibility and desirability of reconfiguring the Foreign Terrorist Asset Tracking Center and the Office of Foreign Assets Control of the Department of the Treasury. It was due by February 1, 2002 however, it was never written. The Senate Select Committee on Intelligence later complained that “[t]he Director of Central Intelligence and the Secretary of the Treasury failed to provide a report, this time in direct contravention of a section of the USA PATRIOT Act” and they further directed “that the statutorily-directed report be completed immediately, and that it should include a section describing the circumstances which led to the Director’s failure to comply with lawful reporting requirements.”
Other measures allowed certain reports on intelligence and intelligence-related matters to be deferred until either February 1, 2002 or a date after February 1, 2002 if the official involved certified that preparation and submission on February 1, 2002, would impede the work of officers or employees engaged in counterterrorism activities. Any such deferral required congressional notification before it was authorized. The Attorney General was charged with training officials in identifying and utilizing foreign intelligence information properly in the course of their duties. The government officials include those in the Federal Government who do not normally encounter or disseminate foreign intelligence in the performance of their duties, and State and local government officials who encounter, or potentially may encounter in the course of a terrorist event, foreign intelligence in the performance of their duties. A sense of Congress was expressed that officers and employees of the intelligence community should be encouraged to make every effort to establish and maintain intelligence relationships with any person, entity, or group while they conduct lawful intelligence activities.
Title X: Miscellaneous
Title X created or altered a number of miscellaneous laws that did not really fit into the any other section of the USA PATRIOT Act. Hazmat licenses were limited to drivers who pass background checks and who can demonstrate they can handle the materials. The Inspector General of the Department of Justice was directed to appoint an official to monitor, review and report back to Congress all allegations of civil rights abuses against the DoJ. It amended the definition of “electronic surveillance” to exclude the interception of communications done through or from a protected computer where the owner allows the interception, or is lawfully involved in an investigation. Money laundering cases may now be brought in the district the money laundering was committed or where a money laundering transfer started from. Aliens who committed money laundering were also prohibited from entering the U.S. Grants were provided to first responders to assist them with responding to and preventing terrorism. US$5,000,000 was authorized to be provided to the Drug Enforcement Administration (DEA) to train police inSouth and East Asia. The Attorney General was directed to commission a study on the feasibility of using biometric identifiers to identify people as they attempt to enter the United States, and which would be connected to the FBI’s database to flag suspected criminals. Another study was also commissioned to determine the feasibility of providing airlines names of suspected terrorists before they boarded flights. The Department of Defense was given temporary authority to use their funding for private contracts for security purposes. The last title also created a new Act called the Crimes Against Charitable Americans Act which amended the Telemarketing and Consumer Fraud and Abuse Prevention Act to require telemarketers who call on behalf of charities to disclose the purpose and other information, including the name and mailing address of the charity the telemarketer is representing. It also increased the penalties from one year imprisonment to five years imprisonment for those committing fraud by impersonating a Red Cross member.
The USA PATRIOT Act was reauthorized by three bills. The first, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, was passed by both houses of Congress in July 2005. This bill reauthorized provisions of the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004. It created new provisions relating to the death penalty for terrorists, enhancing security at seaports, new measures to combat the financing of terrorism,new powers for the Secret Service, anti-methamphetamine initiatives and a number of other miscellaneous provisions. The second reauthorization act, theUSA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, amended the first and was passed in February 2006.
The first act reauthorized all but two of the provisions of Title II that would have expired. Two sections were changed to sunset on December 31, 2009: section 206—the roving wiretap provision—and section 215, which allowed access to business records under FISA. Section 215 was amended further regardless so as to give greater judicial oversight and review. Such orders were also restricted to be authorized by only the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security, and minimization procedures were specified to limit the dissemination and collection of such information. Section 215 also had a “gag” provision, which was changed to allow the defendant to contact their Attorney. However, the change also meant that the defendant was also made to tell the FBI who he (or she) was disclosing the order to—this requirement was removed by the USA PATRIOT Act Additional Reauthorizing Amendments Act.
On Saturday, February 27, 2010, President Barack Obama signed into law legislation that would temporarily extend for one year three controversial provisions of the Patriot Act that had been set to expire:  
- Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
- Allow court-approved seizure of records and property in anti-terrorism operations.
- Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.
In a vote on February 8, 2011, the House of Representatives considered a further extension of the Act through the end of 2011. House leadership moved the extension bill under suspension of the rules, which is intended for noncontroversial legislation and requires two-thirds majority to pass. After the vote, the extension bill did not pass; 277 members voted in favor, which was less than the 290 votes needed to pass the bill under suspension of the rules. Without an extension, the Act was set to expire on February 28, 2011. However, it eventually passed, 275-144. The FISA Sunsets Extension Act of 2011 was signed into law February 25, 2011.
On May 26, 2011, President Barack Obama used an Autopen to sign the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act while he was in France:roving wiretaps, searches of business records (the “library records provision“), and conducting surveillance of “lone wolves”—individuals suspected of terrorist-related activities not linked to terrorist groups. Republican leaders questioned if the use of the Autopen met the constitutional requirements for signing a bill into law.
As NSL provisions of the USA PATRIOT Act had been struck by the courts the reauthorization Act amended the law in an attempt to make them lawful. It provided for judicial review and the legal right of a recipient to challenge the validity of the letter. The reauthorization act still allowed NSLs to be closed and all evidence to be presented in camera and ex parte. Gag provisions were maintained, but were not automatic. They only occurred when the Deputy Assistant Director of the FBI or a Special Agent in Charge in a Bureau field office certified that disclosure would result in “a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person”. However, should there be no non-disclosure order, the defendant can disclose the fact of the NSL to anyone who can render them assistance in carrying out the letter, or to an attorney for legal advice. Again, however, the recipient was ordered to inform the FBI of such a disclosure. Because of the concern over the chilling effects of such a requirement, the Additional Reauthorization Amendments Act removed the requirement to inform the FBI that the recipient spoke about the NSL to their Attorney. Later, the Additional Reauthorization Amendments Act excluded libraries from receiving NSLs, except where they provide electronic communications services. The reauthorization Act also ordered the Attorney General submit a report semi-annually to the House and Senate Judiciary Committees, the House and Senate Intelligence Committees and the House Committee on Financial Services and the Senate Committee on Banking, Housing, and Urban Affairs on all NSL request made under the Fair Credit Reporting Act.
Changes were made to the roving wiretap provisions of the USA PATRIOT Act. Applications and orders for such wiretaps must describe the specific target of the electronic surveillance if the identity of the target is not known. If the nature and location of each of the facilities or places targeted for surveillance is not known, then after 10 days the agency must provide notice to the court. The notice must include the nature and location of each new facility or place at which the electronic surveillance was directed. It must also describe the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new surveillance place or facility under surveillance is or was being used by the target of the surveillance. The applicant must also provide a statement detailing any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed. Applicants must detail the total number of electronic surveillances that have been or are being conducted under the authority of the order.
Section 213 of the USA PATRIOT Act was modified. Previously it stated that delayed notifications would be made to recipients of “sneak and peek” searches in a “reasonable period”. This was seen as unreasonable, as it was undefined and could potentially be used indefinitely. Thus, the reauthorization act changed this to a period not exceeding 30 days after the date of the execution of the search warrant. Courts were given the opportunity to extend this period if they were provided good cause to do so. Section 213 states that delayed notifications could be issued if there is “reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result”. This was criticized, particularly by the ACLU, for allowing potential abuse by law enforcement agencies and was later amended to prevent a delayed notification “if the adverse results consist only of unduly delaying a trial.”. On September 26, 2007 the Sneak and Peak provisions of the USA PATRIOT ACT were struck down, however, by an Oregon US District Court in an opinion indicating the provisions gave too much power to the Executive in the face of the 4th Amendment.
The reauthorization act also legislates increased congressional oversight for emergency disclosures by communication providers undertaken under section 212 of the USA PATRIOT Act. The duration of FISA surveillance and physical search orders were increased. Surveillance performed against “lone wolf terrorists” under section 207 of the USA PATRIOT Act were increased to 120 days for an initial order, while pen registers and trap and trace device extensions under FISA were increased from 90 days to a year. The reauthorization act also increased congressional oversight, requiring a semi-annual report into physical searches and the use of pen registers and trap and trace devices under FISA. The “lone wolf terrorist” provision (Section 207) was a sunset provision that also was to have expired, however this was enhanced by the Intelligence Reform and Terrorism Prevention Act of 2004. The reauthorization act extended the expiration date to December 31, 2009. The amendment to material support law done in the Intelligence Reform and Terrorism Prevention Act was also made permanent. The definition of terrorism was further expanded to include receiving military-type training from a foreign terrorist organization and narcoterrorism. Other provisions of the reauthorization act was to merge the law outlawing train wrecking (18 U.S.C. § 992) and the law outlawing attacks on mass transportation systems (18 U.S.C. § 1993) into a new section of Title 18 of the U.S. Code (18 U.S.C. § 1992) and also to criminalize the act of planning a terrorist attack against a mass transport system. Forfeiture law was further changed and now assets within U.S. jurisdiction will be seized for illegally trafficking in nuclear, chemical, biological or radiological weapons technology or material, if such offense is punishable under foreign law by death or imprisonment for a term exceeding one year. Alternatively, this applies if similar punishment would be so punishable if committed within the U.S. A sense of Congress was further expressed that victims of terrorism should be entitled to the forfeited assets of terrorists.
The USA PATRIOT Act has generated a great deal of controversy since its enactment.
Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks, believing that there would have been little debate. They view the Act as one that was hurried through the Senate with little change before it was passed. (Senators Patrick Leahy and Russell Feingoldproposed amendments to modify the final revision.)
The sheer magnitude of the Act itself was noted by Michael Moore in his controversial film Fahrenheit 9/11. In one of the scenes of the movie, he records Congressman Jim McDermott alleging that no Senator had read the bill and John Conyers, Jr. as saying, “We don’t read most of the bills. Do you really know what that would entail if we read every bill that we passed?” Congressman Conyers then answers his own rhetorical question, asserting that if they did it would “slow down the legislative process”. As a dramatic device, Moore then hired an ice-cream van and drove around Washington, D.C. with a loud speaker, reading out the Act to puzzled passers-by, which included a few Senators.
However, Moore was not the only commentator to notice that not many people had read the Act. When Dahlia Lithwick and Julia Turne for Slate asked, “How bad is PATRIOT, anyway?”, they decided that it was “hard to tell” and stated:
The ACLU, in a new fact sheet challenging the DOJ Web site, wants you to believe that the act threatens our most basic civil liberties. Ashcroft and his roadies call the changes in law “modest and incremental.” Since almost nobody has read the legislation, much of what we think we know about it comes third-hand and spun. Both advocates and opponents are guilty of fear-mongering and distortion in some instances.
One prime example of a controversy of the Patriot Act is shown in the case of Susan Lindauer.
Another is the recent court case United States v. Antoine Jones. A nightclub owner was linked to a drug trafficking stash house via a law enforcement GPS tracking device attached to his car. It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case rose all the way to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects’ Constitutional rights in jeopardy.
The Electronic Privacy Information Center (EPIC) has criticized the law as unconstitutional, especially when “the private communications of law-abiding American citizens might be intercepted incidentally”, while the Electronic Frontier Foundation held that the lower standard applied to wiretaps “gives the FBI a ‘blank check’ to violate the communications privacy of countless innocent Americans”. Others do not find the roving wiretap legislation to be as concerning. Professor David D. Cole of the Georgetown University Law Center, a critic of many of the provisions of the Act, found that though they come at a cost to privacy are a sensible measure while Paul Rosenzweig, a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, argues that roving wiretaps are just a response to rapidly changing communication technology that is not necessarily fixed to a specific location or device.
The Act also allows access to voicemail through a search warrant rather than through a title III wiretap order. James Dempsey, of the CDT, believes that it unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap, and the EFF criticizes the provision’s lack of notice. However, the EFF’s criticism is more extensive—they believe that the amendment “is in possible violation of the Fourth Amendment to the U.S. Constitution” because previously if the FBI listened to voicemail illegally, it could not use the messages in evidence against the defendant. Others disagree with these assessments. Professor Orin Kerr, of the George Washington University school of law, believes that the ECPA “adopted a rather strange rule to regulate voicemail stored with service providers” because “under ECPA, if the government knew that there was one copy of an unopened private message in a person’s bedroom and another copy on their remotely stored voicemail, it was illegal for the FBI to simply obtain the voicemail; the law actually compelled the police to invade the home and rifle through peoples’ bedrooms so as not to disturb the more private voicemail.” In Professor Kerr’s opinion, this made little sense and the amendment that was made by the USA PATRIOT Act was reasonable and sensible.
The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the EFF. They believe that agencies will be able to “‘shop’ for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, using only those judges least likely to say no—even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution”, and that it reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court—their reasoning is that “a small San Francisco ISP served with such a warrant is unlikely to have the resources to appear before the New York court that issued it.” They believe that this is bad because only the communications provider will be able to challenge the warrant as only they will know about it—many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.
For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as EPIC and the ACLU strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed.
However supporters of the amendment, such as Heather Mac Donald, a fellow at the Manhattan Institute and contributing editor to the New York City Journal, expressed the belief that it was necessary because the temporary delay in notification of a search order stops terrorists from tipping off counterparts who are being investigated.
In 2004, FBI agents used this provision to search and secretly examine the home of Brandon Mayfield, who was wrongfully jailed for two weeks on suspicion of involvement in the Madrid train bombings. While the U.S. Government did publicly apologize to Mayfield and his family, Mayfield took it further through the courts. On September 26, 2007, Judge Ann Aiken found the law was, in fact, unconstitutional as the search was an unreasonable imposition on Mayfield and thus violated the Fourth Amendment.
Laws governing the material support of terrorism proved contentious. It was criticized by the EFF for infringement of freedom of association. The EFF argues that had this law been enacted during Apartheid, U.S. citizens would not have been able to support the African National Congress (ANC) as the EFF believe the ANC would have been classed as a terrorist organization. They also used the example of a humanitarian social worker being unable to train Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians, a lawyer being unable to teach IRA members about international law, and peace workers being unable to offer training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.
Another group, the Humanitarian Law Project, also objected to the provision prohibiting “expert advise and assistance” to terrorists and filed a suit against the U.S. government to have it declared unconstitutional. They succeeded, and a Federal Court found that the law was vague enough to cause a reasonable person to guess whether they were breaking the law or not. Thus they found it violated the First Amendment rights of U.S. citizens, and struck it down.
Perhaps one of the biggest controversies involved the use of NSLs by the FBI. Because they allow the FBI to search telephone, email, and financial records without a court order, they were criticized by many parties. In November 2005, BusinessWeek reported that the FBI had issued tens of thousands of NSLs and had obtained one million financial, credit, employment, and in some cases, health records from the customers of targeted Las Vegas businesses. Selected businesses included casinos, storage warehouses and car rental agencies. An anonymous Justice official claimed that such requests were permitted under section 505 of the USA PATRIOT Act and despite the volume of requests insisted “We are not inclined to ask courts to endorse fishing expeditions”. Before this was revealed, however, the ACLU challenged the constitutionality of NSLs in court. In April 2004, they filed suit against the government on behalf of an unknown Internet Service Provider who had been issued an NSL, for reasons unknown. In ACLU v. DoJ, the ACLU argued that the NSL violated the First and Fourth Amendments of the U.S. Constitution because the USA PATRIOT Act failed to spell out any legal process whereby a telephone or Internet company could try to oppose an NSL subpoena in court. The court agreed, and found that because the recipient of the subpoena could not challenge it in court it was unconstitutional. Congress later tried to remedy this in a reauthorization Act, but because they did not remove the non-disclosure provision a Federal court again found NSLs to be unconstitutional because they prevented courts from engaging in meaningful judicial review.
Another provision of the USA PATRIOT Act has caused a great deal of consternation amongst librarians. Section 215 allows the FBI to apply for an order to produce materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities. Among the “tangible things” that could be targeted, it includes “books, records, papers, documents, and other items”.
Supporters of the provision point out that these records are held by third parties, and therefore are exempt from a citizen’s reasonable expectations of privacy and also maintain that the FBI has not abused the provision. As proof, then Attorney General John Ashcroft released information in 2003 that showed that section 215 orders had never been used.
However, despite protestations to the contrary, the American Library Association strongly objected to the provision, believing that library records are fundamentally different from ordinary business records, and that the provision would have a chilling effect on free speech. The association became so concerned that they formed a resolution condemning the USA PATRIOT Act, and which urged members to defend free speech and protect patrons’ privacy.
They urged librarians to seek legal advice before complying with a search order and advised their members to only keeping records for as long as was legally needed.
Consequently, reports started filtering in that librarians were shredding records to avoid having to comply with such orders.
In 2005, Library Connection, a nonprofit consortium of 27 libraries in Connecticut, known as the Connecticut Four worked with the ACLU to lift a gag order for library records, challenging the government’s power under Section 505 to silence four citizens who wished to contribute to public debate on the PATRIOT Act. This case became known as Doe v. Gonzales. In May 2006, the government finally gave up its legal battle to maintain the gag order. In a summary of the actions of the Connecticut Four and their challenge to the USA PATRIOT Act, Jones (2009: 223) notes: “Librarians need to understand their country’s legal balance between the protection of freedom of expression and the protection of national security. Many librarians believe that the interests of national security, important as they are, have become an excuse for chilling the freedom to read.”
Another controversial aspect of the USA PATRIOT Act is the immigration provisions that allow for the indefinite detention of any alien who the Attorney General believes may cause a terrorist act. Before the USA PATRIOT Act was passed, Anita Ramasastry, an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle, Washington, accused the Act of depriving basic rights for immigrants to America, including legal permanent residents. She warned that “Indefinite detention upon secret evidence—which the USA PATRIOT Act allows—sounds more like Taliban justice than ours. Our claim that we are attempting to build an international coalition against terrorism will be severely undermined if we pass legislation allowing even citizens of our allies to be incarcerated without basic U.S. guarantees of fairness and justice.” Many other parties have also been strongly critical of the provision. Russell Feingold, in a Senate floor statement, claimed that the provision “falls short of meeting even basic constitutional standards of due process and fairness [as it] continues to allow the Attorney General to detain persons based on mere suspicion”. The University of California passed a resolution condemning (amongst other things) the indefinite detention provisions of the Act, while the ACLU has accused the Act of giving the Attorney General “unprecedented new power to determine the fate of immigrants … Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.”
Another controversial aspect of the USA PATRIOT Act is its effect on the privacy of Canadians living in the province of British Columbia (B.C.). British Columbia’s privacy commissioner raises concerns that the USA PATRIOT Act will allow the United States government to access Canadians’ private information, such as personal medical records, that are outsourced to American companies. Although the government of B.C. has taken measures to prevent United States authorities from obtaining information, the widespread powers of the USA PATRIOT Act could overcome legislation that is passed in Canada. B.C. Privacy Commissioner David Loukidelis stated in a report on the consequences of the USA PATRIOT Act, “once information is sent across borders, it’s difficult, if not impossible, to control”.
In an effort to maintain their privacy, British Columbia placed amendments on the Freedom of Information and Protection of Privacy Act (FOIPPA), which was enacted as law on October 21, 2004. These amendments aim to place more firm limitations on “storing, accessing, and disclosing of B.C. public sector data by service providers.” These laws only pertain to public sector data and do not cover trans-border or private sector data in Canada. The public sector establishments include an estimated 2,000 “government ministries, hospitals, boards of health, universities and colleges, school boards, municipal governments and certain Crown corporations and agencies.” In response to these laws, many companies are now specifically opting to host their sensitive data outside the United States.
Legal action has been taken in Nova Scotia to protect the province from the USA PATRIOT Act’s data collecting methods. On November 15, 2007 the government of Nova Scotia passed a legislation aimed to protect Nova Scotians’ personal information from being brought forward by the USA PATRIOT Act. The act was entitled “The new Personal Information International Disclosure Protection Act”. The goal of the act is to establish requirements to protect personal information from being revealed, as well as punishments for failing to do so. Justice Minister Murray Scott stated, “This legislation will help ensure that Nova Scotians’ personal information will be protected. The act outlines the responsibilities of public bodies, municipalities and service providers and the consequences if these responsibilities are not fulfilled.” In the 1980s, the Bank of Nova Scotia was the center of an early, pre-Internet data-access case that led to the disclosure of banking records.
After suspected abuses of the USA PATRIOT Act were brought to light in June 2013 with articles about collection of American call records by the NSA and thePRISM program (see 2013 mass surveillance disclosures), Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds. He released a statement saying “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.” He added: “Seizing phone records of millions of innocent people is excessive and un-American.”
FOURTH AMENDMENT: AN OVERVIEW
I. INTERESTS PROTECTED
The Fourth Amendment of the U.S. Constitution provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and noWarrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The ultimate goal of this provision is to protect people’s right to privacy and freedom from arbitrary governmental intrusions. Private intrusions not acting in the color of governmental authority are exempted from the Fourth Amendment.
To have standing to claim protection under the Fourth Amendment, one must first demonstrate an expectation of privacy, which is not merely a subjective expectation in mind but an expectation that society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches of private premises are mostly prohibited unless there are justifiable exceptions; on the other hand, a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. An Expectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.
A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawfulsearch and seizure. States can always establish higher standards for searches and seizures than the Fourth Amendment requires, but states cannot allow conduct that violates the Fourth Amendment.
The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.
II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT
The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection under Fourth Amendment.
A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual’s reasonable expectation of privacy.
Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonablesearches under the Fourth Amendment when supported by probable cause and conducted in a reasonablemanner.
A dog-sniff inspection is invalid under the Fourth Amendment if the the inspection violates a reasonableexpectation of privacy. Electronic surveillance is also considered a search under the Fourth Amendment.
B. Seizure of a Person
A seizure of a person, within the meaning of the Fourth Amendment, occurs when the police’s conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at his will.
Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendmentpurposes.
An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment. Awarrantless arrest may be justified where probable cause and urgent need are present prior to the arrest. Probable cause is present when the police officer has a reasonable belief in the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence. A warrantless arrest may be invalidated if the police officer fails to demonstrate exigent circumstances.
The ability to make warrantless arrests are commonly limited by statutes subject to the due process guaranty of the U.S. Constitution. A suspect arrested without a warrant is entitled to prompt judicial determination, usually within 48 hours.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth Amendment protection. For instance, police officers can perform a terry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.
An officer’s reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.
C. Seizure of Property
A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property.
In some circumstances, warrantless seizures of objects in plain view do not constitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.
III. WARRANT REQUIREMENT
A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.
To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified. An authority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.
The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical. For instance, in State v. Helmbright 990 N.E.2d 154, Ohio court held that a warrantless search of probationer’s person or place of residence complies with the Fourth Amendment if the officer who conducts the search possesses “reasonable grounds” to believe that the probationer has failed to comply with the terms of his probation.
Other well-established exceptions to the warrant requirement include consensual searches, certain briefinvestigatory stops, searches incident to a valid arrest, and seizures of items in plain view.
There is no general exception to the Fourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generally and, if accepted, whether the exception should include both physical searches and electronic surveillance.
IV. REASONABLENESS REQUIREMENT
All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure.
Searches and seizures with a warrant satisfy the reasonableness requirement. Warrantless searches and seizures are presumed to be unreasonable unless they fall within a few exceptions.
In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individual’s right to privacy and the need to promote government interests and special needs. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzing the reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure and the manner in which the search or seizure is conducted.
V. EXCLUSIONARY RULE
Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.
VI. ELECTRONIC SURVEILLANCE
In recent years, the Fourth Amendment‘s applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the search and seizure of electronic devices.
Many electronic search cases involve whether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectation of privacy with regard to information stored on a company-owned computer. In the 2010 case of City of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.
Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendmentlitigation.
VII. THE USA PATRIOT ACT
Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permits law enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrant requires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using an NSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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HOW THE NSA CONVERTS SPOKEN WORDS INTO SEARCHABLE TEXT
Most people realize that emails and other digital communications they once considered private can now become part of their permanent record.
But even as they increasingly use apps that understand what they say, most people don’t realize that the words they speak are not so private anymore, either.
Top-secret documents from the archive of former NSA contractor Edward Snowden show the National Security Agency can now automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored.
The documents show NSA analysts celebrating the development of what they called “Google for Voice” nearly a decade ago.
Though perfect transcription of natural conversation apparently remains the Intelligence Community’s “holy grail,” the Snowden documentsdescribe extensive use of keyword searching as well as computer programs designed to analyze and “extract” the content of voice conversations, and even use sophisticated algorithms to flag conversations of interest.
The documents include vivid examples of the use of speech recognition in war zones like Iraq and Afghanistan, as well as in Latin America. But they leave unclear exactly how widely the spy agency uses this ability, particularly in programs that pick up considerable amounts of conversations that include people who live in or are citizens of the United States.
Spying on international telephone calls has always been a staple of NSA surveillance, but the requirement that an actual person do the listening meant it was effectively limited to a tiny percentage of the total traffic. By leveraging advances in automated speech recognition, the NSA has entered the era of bulk listening.
And this has happened with no apparent public oversight, hearings or legislative action. Congress hasn’t shown signs of even knowing that it’s going on.
The USA Freedom Act — the surveillance reform bill that Congress is currently debating — doesn’t address the topic at all. The bill would end an NSA program that does not collect voice content: the government’s bulk collection of domestic calling data, showing who called who and for how long.
Even if becomes law, the bill would leave in place a multitude of mechanisms exposed by Snowden that scoop up vast amounts of innocent people’s text and voice communications in the U.S. and across the globe.
Civil liberty experts contacted by The Intercept said the NSA’s speech-to-text capabilities are a disturbing example of the privacy invasions that are becoming possible as our analog world transitions to a digital one.
“I think people don’t understand that the economics of surveillance have totally changed,” Jennifer Granick, civil liberties director at the Stanford Center for Internet and Society, told The Intercept.
“Once you have this capability, then the question is: How will it be deployed? Can you temporarily cache all American phone calls, transcribe all the phone calls, and do text searching of the content of the calls?” she said. “It may not be what they are doing right now, but they’ll be able to do it.”
And, she asked: “How would we ever know if they change the policy?”
Indeed, NSA officials have been secretive about their ability to convert speech to text, and how widely they use it, leaving open any number of possibilities.
That secrecy is the key, Granick said. “We don’t have any idea how many innocent people are being affected, or how many of those innocent people are also Americans.”
I Can Search Against It
NSA whistleblower Thomas Drake, who was trained as a voice processing crypto-linguist and worked at the agency until 2008, told The Intercept that he saw a huge push after the September 11, 2001 terror attacks to turn the massive amounts of voice communications being collected into something more useful.
Human listening was clearly not going to be the solution. “There weren’t enough ears,” he said.
The transcripts that emerged from the new systems weren’t perfect, he said. “But even if it’s not 100 percent, I can still get a lot more information. It’s far more accessible. I can search against it.”
Converting speech to text makes it easier for the NSA to see what it has collected and stored, according to Drake. “The breakthrough was being able to do it on a vast scale,” he said.
More Data, More Power, Better Performance
The Defense Department, through its Defense Advanced Research Projects Agency (DARPA), started funding academic and commercial research into speech recognition in the early 1970s.
What emerged were several systems to turn speech into text, all of which slowly but gradually improved as they were able to work with more data and at faster speeds.
In a brief interview, Dan Kaufman, director of DARPA’s Information Innovation Office, indicated that the government’s ability to automate transcription is still limited.
Kaufman says that automated transcription of phone conversation is “super hard,” because “there’s a lot of noise on the signal” and “it’s informal as hell.”
“I would tell you we are not very good at that,” he said.
In an ideal environment like a news broadcast, he said, “we’re getting pretty good at being able to do these types of translations.”
A 2008 document from the Snowden archive shows that transcribing news broadcasts was already working well seven years ago, using a program called Enhanced Video Text and Audio Processing:
(U//FOUO) EViTAP is a fully-automated news monitoring tool. The key feature of this Intelink-SBU-hosted tool is that it analyzes news in six languages, including Arabic, Mandarin Chinese, Russian, Spanish, English, and Farsi/Persian. “How does it work?” you may ask. It integrates Automatic Speech Recognition (ASR) which provides transcripts of the spoken audio. Next, machine translation of the ASR transcript translates the native language transcript to English. Voila! Technology is amazing.
A version of the system the NSA uses is now even available commercially.
Experts in speech recognition say that in the last decade or so, the pace of technological improvement has been explosive. As information storage became cheaper and more efficient, technology companies were able to store massive amounts of voice data on their servers, allowing them to continually update and improve the models. Enormous processors, tuned as “deep neural networks” that detect patterns like human brains do, produce much cleaner transcripts.
And the Snowden documents show that the same kinds of leaps forward seen in commercial speech-to-text products have also been happening in secret at the NSA, fueled by the agency’s singular access to astronomical processing power and its own vast data archives.
In fact, the NSA has been repeatedly releasing new and improved speech recognition systems for more than a decade.
The first-generation tool, which made keyword-searching of vast amounts of voice content possible, was rolled out in 2004 and code-named RHINEHART.
“Voice word search technology allows analysts to find and prioritize intercept based on its intelligence content,” says an internal 2006 NSA memo entitled “For Media Mining, the Future Is Now!”
The memo says that intelligence analysts involved in counterterrorism were able to identify terms related to bomb-making materials, like “detonator” and “hydrogen peroxide,” as well as place names like “Baghdad” or people like “Musharaf.”
RHINEHART was “designed to support both real-time searches, in which incoming data is automatically searched by a designated set of dictionaries, and retrospective searches, in which analysts can repeatedly search over months of past traffic,” the memo explains (emphasis in original).
As of 2006, RHINEHART was operating “across a wide variety of missions and languages” and was “used throughout the NSA/CSS [Central Security Service] Enterprise.”
But even then, a newer, more sophisticated product was already being rolled out by the NSA’s Human Language Technology (HLT) program office. The new system, called VoiceRT, was first introduced in Baghdad, and “designed to index and tag 1 million cuts per day.”
The goal, according to another 2006 memo, was to use voice processing technology to be able “index, tag and graph,” all intercepted communications. “Using HLT services, a single analyst will be able to sort through millions of cuts per day and focus on only the small percentage that is relevant,” the memo states.
A 2009 memo from the NSA’s British partner, GCHQ, describes how “NSA have had the BBN speech-to-text system Byblos running at Fort Meade for at least 10 years. (Initially they also had Dragon.) During this period they have invested heavily in producing their own corpora of transcribed Sigint in both American English and an increasing range of other languages.” (GCHQ also noted that it had its own small corpora of transcribed voice communications, most of which happened to be “Northern Irish accented speech.”)
VoiceRT, in turn, was surpassed a few years after its launch. According to the intelligence community’s “Black Budget” for fiscal year 2013, VoiceRT was decommissioned and replaced in 2011 and 2012, so that by 2013, NSA could operationalize a new system. This system, apparently called SPIRITFIRE, could handle more data, faster. SPIRITFIRE would be “a more robust voice processing capability based on speech-to-text keyword search and paired dialogue transcription.”
Extensive Use Abroad
Voice communications can be collected by the NSA whether they are being sent by regular phone lines, over cellular networks, or through voice-over-internet services. Previously released documents from the Snowden archive describe enormous efforts by the NSA during the last decade to get access to voice-over-internet content like Skype calls, for instance. And other documents in the archive chronicle the agency’s adjustment to the fact that an increasingly large percentage of conversations, even those that start as landline or mobile calls, end up as digitized packets flying through the same fiber-optic cables that the NSA taps so effectively for other data and voice communications.
The Snowden archive, as searched and analyzed by The Intercept, documents extensive use of speech-to-text by the NSA to search through international voice intercepts — particularly in Iraq and Afghanistan, as well as Mexico and Latin America.
For example, speech-to-text was a key but previously unheralded element of the sophisticated analytical program known as the Real Time Regional Gateway (RTRG), which started in 2005 when newly appointed NSA chief Keith B. Alexander, according to the Washington Post, “wanted everything: Every Iraqi text message, phone call and e-mail that could be vacuumed up by the agency’s powerful computers.”
The Real Time Regional Gateway was credited with playing a role in “breaking up Iraqi insurgent networks and significantly reducing the monthly death toll from improvised explosive devices.” The indexing and searching of “voice cuts” was deployed to Iraq in 2006. By 2008, RTRG was operational in Afghanistan as well.
A slide from a June 2006 NSA powerpoint presentation described the role of VoiceRT:
Keyword spotting extended to Iranian intercepts as well. A 2006 memoreported that RHINEHART had been used successfully by Persian-speaking analysts who “searched for the words ‘negotiations’ or ‘America’ in their traffic, and RHINEHART located a very important call that was transcribed verbatim providing information on an important Iranian target’s discussion of the formation of a the new Iraqi government.”
According to a 2011 memo, “How is Human Language Technology (HLT) Progressing?“, NSA that year deployed “HLT Labs” to Afghanistan, NSA facilities in Texas and Georgia, and listening posts in Latin America run by the Special Collection Service, a joint NSA/CIA unit that operates out of embassies and other locations.
“Spanish is the most mature of our speech-to-text analytics,” the memo says, noting that the NSA and its Special Collections Service sites in Latin America, have had “great success searching for Spanish keywords.”
The memo offers an example from NSA Texas, where an analyst newly trained on the system used a keyword search to find previously unreported information on a target involved in drug-trafficking. In another case, an official at a Special Collection Service site in Latin America “was able to find foreign intelligence regarding a Cuban official in a fraction of the usual time.”
In a 2011 article, “Finding Nuggets — Quickly — in a Heap of Voice Collection, From Mexico to Afghanistan,” an intelligence analysis technical director from NSA Texas described the “rare life-changing instance” when he learned about human language technology, and its ability to “find the exact traffic of interest within a mass of collection.”
Analysts in Texas found the new technology a boon for spying. “From finding tunnels in Tijuana, identifying bomb threats in the streets of Mexico City, or shedding light on the shooting of US Customs officials in Potosi, Mexico, the technology did what it advertised: It accelerated the process of finding relevant intelligence when time was of the essence,” he wrote. (Emphasis in original.)
The author of the memo was also part of a team that introduced the technology to military leaders in Afghanistan. “From Kandahar to Kabul, we have traveled the country explaining NSA leaders’ vision and introducing SIGINT teams to what HLT analytics can do today and to what is still needed to make this technology a game-changing success,” the memo reads.
Extent of Domestic Use Remains Unknown
What’s less clear from the archive is how extensively this capability is used to transcribe or otherwise index and search voice conversations that primarily involve what the NSA terms “U.S. persons.”
The NSA did not answer a series of detailed questions about automated speech recognition, even though an NSA “classification guide” that is part of the Snowden archive explicitly states that “The fact that NSA/CSS has created HLT models” for speech-to-text processing as well as gender, language and voice recognition, is “UNCLASSIFIED.”
Also unclassified: The fact that the processing can sort and prioritize audio files for human linguists, and that the statistical models are regularly being improved and updated based on actual intercepts. By contrast, because they’ve been tuned using actual intercepts, the specific parameters of the systems are highly classified.
“The National Security Agency employs a variety of technologies in the course of its authorized foreign-intelligence mission,” spokesperson Vanee’ Vines wrote in an email to The Intercept. “These capabilities, operated by NSA’s dedicated professionals and overseen by multiple internal and external authorities, help to deter threats from international terrorists, human traffickers, cyber criminals, and others who seek to harm our citizens and allies.”
Vines did not respond to the specific questions about privacy protections in place related to the processing of domestic or domestic-to-international voice communications. But she wrote that “NSA always applies rigorous protections designed to safeguard the privacy not only of U.S. persons, but also of foreigners abroad, as directed by the President in January 2014.”
The presidentially appointed but independent Privacy and Civil Liberties Oversight Board (PCLOB) didn’t mention speech-to-text technology in itspublic reports.
“I’m not going to get into whether any program does or does not have that capability,” PCLOB chairman David Medine told The Intercept.
His board’s reports, he said, contained only information that the intelligence community agreed could be declassified.
“We went to the intelligence community and asked them to declassify a significant amount of material,” he said. The “vast majority” of that material was declassified, he said. But not all — including “facts that we thought could be declassified without compromising national security.”
Hypothetically, Medine said, the ability to turn voice into text would raise significant privacy concerns. And it would also raise questions about how the intelligence agencies “minimize” the retention and dissemination of material— particularly involving U.S. persons — that doesn’t include information they’re explicitly allowed to keep.
“Obviously it increases the ability of the government to process information from more calls,” Medine said. “It would also allow the government to listen in on more calls, which would raise more of the kind of privacy issues that the board has raised in the past.”
“I’m not saying the government does or doesn’t do it,” he said, “just that these would be the consequences.”
A New Learning Curve
Speech recognition expert Bhiksha Raj likens the current era to the early days of the Internet, when people didn’t fully realize how the things they typed would last forever.
“When I started using the Internet in the 90s, I was just posting stuff,” said Raj, an associate professor at Carnegie Mellon University’s Language Technologies Institute. “It never struck me that 20 years later I could go Google myself and pull all this up. Imagine if I posted something on alt.binaries.pictures.erotica or something like that, and now that post is going to embarrass me forever.”
The same is increasingly becoming the case with voice communication, he said. And the stakes are even higher, given that the majority of the world’s communication has historically been conducted by voice, and it has traditionally been considered a private mode of communication.
“People still aren’t realizing quite the magnitude that the problem could get to,” Raj said. “And it’s not just surveillance,” he said. “People are using voice services all the time. And where does the voice go? It’s sitting somewhere. It’s going somewhere. You’re living on trust.” He added: “Right now I don’t think you can trust anybody.”
The Need for New Rules
Kim Taipale, executive director of the Stilwell Center for Advanced Studies in Science and Technology Policy, is one of several people who tried a decade ago to get policymakers to recognize that existing surveillance law doesn’t adequately deal with new global communication networks and advanced technologies including speech recognition.
“Things aren’t ephemeral anymore,” Taipale told The Intercept. “We’re living in a world where many things that were fleeting in the analog world are now on the permanent record. The question then becomes: what are the consequences of that and what are the rules going to be to deal with those consequences?”
Realistically, Taipale said, “the ability of the government to search voice communication in bulk is one of the things we may have to live with under some circumstances going forward.” But there at least need to be “clear public rules and effective oversight to make sure that the information is only used for appropriate law-enforcement or national security purposes consistent with Constitutional principles.”
Ultimately, Taipale said, a system where computers flag suspicious voice communications could be less invasive than one where people do the listening, given the potential for human abuse and misuse to lead to privacy violations. “Automated analysis has different privacy implications,” he said.
But to Jay Stanley, a senior policy analyst with the ACLU’s Speech, Privacy and Technology Project, the distinction between a human listening and a computer listening is irrelevant in terms of privacy, possible consequences, and a chilling effect on speech.
“What people care about in the end, and what creates chilling effects in the end, are consequences,” he said. “I think that over time, people would learn to fear computerized eavesdropping just as much as they fear eavesdropping by humans, because of the consequences that it could bring.”
Indeed, computer listening could raise new concerns. One of the internal NSA memos from 2006 says an “important enhancement under development is the ability for this HLT capability to predict what intercepted data might be of interest to analysts based on the analysts’ past behavior.”
Citing Amazon’s ability to not just track but predict buyer preferences, the memo says that an NSA system designed to flag interesting intercepts “offers the promise of presenting analysts with highly enriched sorting of their traffic.”
To Phillip Rogaway, a professor of computer science at the University of California, Davis, keyword-search is probably the “least of our problems.” In an email to The Intercept, Rogaway warned that “When the NSA identifies someone as ‘interesting’ based on contemporary NLP [Natural Language Processing] methods, it might be that there is no human-understandable explanation as to why beyond: ‘his corpus of discourse resembles those of others whom we thought interesting'; or the conceptual opposite: ‘his discourse looks or sounds different from most people’s.’”
If the algorithms NSA computers use to identify threats are too complex for humans to understand, Rogaway wrote, “it will be impossible to understand the contours of the surveillance apparatus by which one is judged. All that people will be able to do is to try your best to behave just like everyone else.”
Next: The NSA’s best kept open secret.
Readers with information or insight into these programs are encouraged to get in touch, either by email, or anonymously via SecureDrop.
Documents published with this article:
- RT10 Overview (June 2006)
- For Media Mining, the Future is Now! (August 1, 2006)
- For Media Mining, the Future is Now! (conclusion) (August 7, 2006)
- Dealing With a ‘Tsunami’ of Intercept (August 29, 2006)
- Coming Soon! A Tool that Enables Non-Linguists to Analyze Foreign-TV News Programs (October 23, 2008)
- SIRDCC Speech Technology WG assessment of current STT technology (December 7, 2009)
- Classification Guide for Human Language Technology (HLT) Models(May 18, 2011)
- Finding Nuggets – Quickly – in a Heap of Voice Collection, From Mexico to Afghanistan (May 25, 2011)
- How Is Human Language (HLT) Progressing?(September 26, 2011)
- “Black Budget” — FY 2013 Congressional Budget Justification/National Intelligence Program, p. 262 (February 2012)
- “Black Budget” — FY 2013 Congressional Budget Justification/National Intelligence Program, pp. 360-364 (February 2012)
Research on the Snowden archive was conducted by Intercept researcher Andrew Fishman
Section 215 of the USA PATRIOT Act
EFF sued the Department of Justice (DOJ) on the 10th anniversary of the signing of the USA PATRIOT Act in October 2011 for answers about “secret interpretations” of a controversial section of the law. In June 2013, a leaked FISA court order publicly revealed that “secret interpretation”: the government was using Section 215 of the Patriot Act to collect the phone records of virtually every person in the United States.
Prior to the revelations, several senators warned that the DOJ was using Section 215 of the PATRIOT Act to support what government attorneys called a “sensitive collection program,” targeting large numbers of Americans. The language of Section 215 allows for secret court orders to collect “tangible things” that could be relevant to a government investigation – a far lower threshold and more expansive reach than a warrant based on probable cause. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns.
In response to a court order in our lawsuit, in September 2013, the government released hundreds of pages of previously secret FISA documents detailing the court’s interpretation of Section 215, including an opinion excoriating the NSA for misusing its mass surveillance database for years. In October 2013, the government released a second batch of documents related to Section 215, which showed, among other things, that the NSA had collected cell site location without notifying its oversight committees in Congress or the FISA court.
EFF’s lawsuit came after the DOJ failed to respond to a Freedom of Information Act (FOIA) request on the interpretation and use of Section 215. The suit demanded records describing the types of “tangible things” that have been collected so far, the legal basis for the “sensitive collection program,” and information on the how many people have been affected by Section 215 orders.
The lawsuit remains ongoing.
Background Articles and Videos
Through a PRISM, Darkly – Everything we know about NSA spying [30c3]
Published on Dec 30, 2013
Through a PRISM, Darkly
Everything we know about NSA spying
From Stellar Wind to PRISM, Boundless Informant to EvilOlive, the NSA spying programs are shrouded in secrecy and rubber-stamped by secret opinions from a court that meets in a faraday cage. The Electronic Frontier Foundation’s Kurt Opsahl explains the known facts about how the programs operate and the laws and regulations the U.S. government asserts allows the NSA to spy on you.
The Electronic Frontier Foundation, a non-profit civil society organization, has been litigating against the NSA spying program for the better part of a decade. EFF has collected and reviewed dozens of documents, from the original NY Times stories in 2005 and the first AT&T whistleblower in 2006, through the latest documents released in the Guardian or obtained through EFF’s Freedom of Information (government transparency) litigation. EFF attorney Kurt Opsahl’s lecture will describe how the NSA spying program works, the underlying technologies, the targeting procedures (how they decide who to focus on), the minimization procedures (how they decide which information to discard), and help you makes sense of the many code names and acronyms in the news. He will also discuss the legal and policy ramifications that have become part of the public debate following the recent disclosures, and what you can do about it. After summarizing the programs, technologies, and legal/policy framework in the lecture, the audience can ask questions.
Speaker: Kurt Opsahl
Event: 30th Chaos Communication Congress [30c3] by the Chaos Computer Club [CCC]
Location: Congress Centrum Hamburg (CCH); Am Dammtor; Marseiller Straße; 20355 Hamburg; Germany
Glenn Becks “SURVEILLANCE STATE”
Inside the NSA
Ed Snowden, NSA, and Fairy Tales
AT&T Spying On Internet Traffic
For years the National Securities Agency, has been spying on each & every keystroke. The national headquarters of AT&T is in Missouri, where ex-employees describe a secret room. The program is called “Splitter Cut-In & Test Procedure.”
NSA Whistle-Blower Tells All – Op-Docs: The Program
The filmmaker Laura Poitras profiles William Binney, a 32-year veteran of the National Security Agency who helped design a top-secret program he says is broadly collecting Americans’ personal data.
NSA Whistleblower: Everyone in US under virtual surveillance, all info stored, no matter the post
He told you so: Bill Binney talks NSA leaks
William Benny – The Government is Profiling You (The NSA is Spying on You)
‘After 9/11 NSA had secret deal with White House’
The story of Whistleblower Thomas Drake
Whistleblowers, Part Two: Thomas Drake
NSA Whistleblower Thomas Drake speaks at National Press Club – March 15, 2013
Meet Edward Snowden: NSA PRISM Whistleblower
The Truth About Edward Snowden
N.S.A. Spying: Why Does It Matter?
Inside The NSA~Americas Cyber Secrets
NSA Whistleblower Exposes Obama’s Dragnet
AT&T whistleblower against immunity for Bush spy program-1/2
AT&T Whistleblower Urges Against Immunity for Telecoms in Bush Spy Program
The Senate is expected to vote on a controversial measure to amend the Foreign Intelligence Surveillance Act tomorrow. The legislation would rewrite the nation’s surveillance laws and authorize the National Security Agency’s secret program of warrantless wiretapping. We speak with Mark Klein, a technician with AT&T for over twenty-two years. In 2006 Klein leaked internal AT&T documents that revealed the company had set up a secret room in its San Francisco office to give the National Security Agency access to its fiber optic internet cables.
AT&T whistleblower against immunity for Bush spy program-2/2
Enemy Of The State 1998 (1080p) (Full movie)
Background Articles and Videos
Stellar Wind was the open secret code name for four surveillance programs by the United States National Security Agency (NSA) during the presidency of George W. Bush and revealed by Thomas Tamm to The New York Times reporters James Risen and Eric Lichtblau. The operation was approved by President George W. Bush shortly after the September 11 attacks in 2001. Stellar Wind was succeeded during the presidency of Barack Obama by four major lines of intelligence collection in the territorial United States, together capable of spanning the full range of modern telecommunications.
The program’s activities involved data mining of a large database of the communications of American citizens, including e-mail communications, phone conversations, financial transactions, and Internet activity. William Binney, a retired Technical Leader with the NSA, discussed some of the architectural and operational elements of the program at the 2012 Chaos Communication Congress.
There were internal disputes within the Justice Department about the legality of the program, because data are collected for large numbers of people, not just the subjects of Foreign Intelligence Surveillance Act (FISA) warrants.
During the Bush Administration, the Stellar Wind cases were referred to by FBI agents as “pizza cases” because many seemingly suspicious cases turned out to be food takeout orders. According to Mueller, approximately 99 percent of the cases led nowhere, but “it’s that other 1% that we’ve got to be concerned about”. One of the known uses of these data were the creation of suspicious activity reports, or “SARS”, about people suspected of terrorist activities. It was one of these reports that revealed former New York governor Eliot Spitzer’s use of prostitutes, even though he was not suspected of terrorist activities.
In March 2012 Wired magazine published “The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)” talking about a vast new NSA facility in Utah and says “For the first time, a former NSA official has gone on the record to describe the program, codenamed Stellar Wind, in detail,” naming the official William Binney, a former NSA code breaker. Binney went on to say that the NSA had highly secured rooms that tap into major switches, and satellite communications at both AT&T and Verizon. The article suggested that the otherwise dispatched Stellar Wind is actually an active program.
PRISM is a clandestine national security electronic surveillance program operated by the United States National Security Agency (NSA) since 2007.[Notes 1] PRISM is a government codename for a data collection effort known officially as US-984XN. It is operated under the supervision of the United States Foreign Intelligence Surveillance Court pursuant to the Foreign Intelligence Surveillance Act (FISA). The existence of the program was leaked by NSA contractor Edward Snowden and published by The Guardian and The Washington Post on June 6, 2013.
A document included in the leak indicated that the PRISM SIGAD was “the number one source of raw intelligence used for NSA analytic reports.” The President’s Daily Brief, an all-source intelligence product, cited PRISM data as a source in 1,477 items in 2012. The leaked information came to light one day after the revelation that the United States Foreign Intelligence Surveillance Court had been requiring the telecommunications company Verizon to turn over to the NSA logs tracking all of its customers’ telephone calls on an ongoing daily basis.
According to the Director of National Intelligence James Clapper, PRISM cannot be used to intentionally target any Americans or anyone in the United States. Clapper said a special court, Congress, and the executive branch oversee the program and extensive procedures ensure the acquisition, retention, and dissemination of data accidentally collected about Americans is kept to a minimum. Clapper issued a statement and “fact sheet” to correct what he characterized as “significant misimpressions” in articles by The Washington Post and The Guardian newspapers.
Slide showing that much of the world’s communications flow through the US
Details of information collected via PRISM
PRISM is a “Special Source Operation” in the tradition of NSA’s intelligence alliances with as many as 100 trusted U.S. companies since the 1970s. A prior program, the Terrorist Surveillance Program, was implemented in the wake of the September 11 attacks under the George W. Bush Administration but was widely criticized and had its legality questioned, because it was conducted without approval of the Foreign Intelligence Surveillance Court (FISC). PRISM was authorized by an order of the FISC. Its creation was enabled by the Protect America Act of 2007 under President Bush and the FISA Amendments Act of 2008, which legally immunized private companies that cooperated voluntarily with US intelligence collection and was renewed by Congress under President Obama in 2012 for five years until December 2017. According to The Register, the FISA Amendments Act of 2008 “specifically authorizes intelligence agencies to monitor the phone, email, and other communications of U.S. citizens for up to a week without obtaining a warrant” when one of the parties is outside the U.S.
PRISM was first publicly revealed on June 6, 2013, after classified documents about the program were leaked to The Washington Post and The Guardian by American Edward Snowden. The leaked documents included 41 PowerPoint slides, four of which were published in news articles. The documents identified several technology companies as participants in the PRISM program, including (date of joining PRISM in parentheses) Microsoft (2007), Yahoo! (2008), Google (2009), Facebook (2009), Paltalk (2009), YouTube (2010), AOL (2011), Skype (2011), and Apple (2012). The speaker’s notes in the briefing document reviewed by The Washington Post indicated that “98 percent of PRISM production is based on Yahoo, Google and Microsoft.”
The slide presentation stated that much of the world’s electronic communications pass through the United States, because electronic communications data tend to follow the least expensive route rather than the most physically direct route, and the bulk of the world’s internet infrastructure is based in the United States. The presentation noted that these facts provide United States intelligence analysts with opportunities for intercepting the communications of foreign targets as their electronic data pass into or through the United States.
According to The Washington Post, the intelligence analysts search PRISM data using terms intended to identify suspicious communications of targets whom the analysts suspect with at least 51 percent confidence to not be United States citizens, but in the process, communication data of some United States citizens are also collected unintentionally. Training materials for analysts tell them that while they should periodically report such accidental collection of non-foreign United States data, “it’s nothing to worry about.”
Response from companies
The original Washington Post and Guardian articles reporting on PRISM noted that one of the leaked briefing documents said PRISM involves collection of data “directly from the servers” of several major internet services providers.
Initial Public Statements
Corporate executives of several companies identified in the leaked documents told The Guardian that they had no knowledge of the PRISM program in particular and also denied making information available to the government on the scale alleged by news reports. Statements of several of the companies named in the leaked documents were reported by TechCrunch and The Washington Post as follows:
Slide listing companies and the date that PRISM collection began
- Microsoft: “We provide customer data only when we receive a legally binding order or subpoena to do so, and never on a voluntary basis. In addition we only ever comply with orders for requests about specific accounts or identifiers. If the government has a broader voluntary national security program to gather customer data we don’t participate in it.”
- Yahoo!: “Yahoo! takes users’ privacy very seriously. We do not provide the government with direct access to our servers, systems, or network.” “Of the hundreds of millions of users we serve, an infinitesimal percentage will ever be the subject of a government data collection directive.”
- Facebook: “We do not provide any government organization with direct access to Facebook servers. When Facebook is asked for data or information about specific individuals, we carefully scrutinize any such request for compliance with all applicable laws, and provide information only to the extent required by law.”
- Google: “Google cares deeply about the security of our users’ data. We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government ‘back door’ into our systems, but Google does not have a backdoor for the government to access private user data.” “[A]ny suggestion that Google is disclosing information about our users’ Internet activity on such a scale is completely false.”
- Apple: “We have never heard of PRISM. We do not provide any government agency with direct access to our servers, and any government agency requesting customer data must get a court order.”
- Dropbox: “We’ve seen reports that Dropbox might be asked to participate in a government program called PRISM. We are not part of any such program and remain committed to protecting our users’ privacy.”
In response to the technology companies’ denials of the NSA being able to directly access the companies’ servers, The New York Times reported that sources had stated the NSA was gathering the surveillance data from the companies using other technical means in response to court orders for specific sets of data. The Washington Post suggested, “It is possible that the conflict between the PRISM slides and the company spokesmen is the result of imprecision on the part of the NSA author. In another classified report obtained by The Post, the arrangement is described as allowing ‘collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,’ rather than directly to company servers.” “[I]n context, ‘direct’ is more likely to mean that the NSA is receiving data sent to them deliberately by the tech companies, as opposed to intercepting communications as they’re transmitted to some other destination.
“If these companies received an order under the FISA amendments act, they are forbidden by law from disclosing having received the order and disclosing any information about the order at all,” Mark Rumold, staff attorney at the Electronic Frontier Foundation, told ABC News.
Slide showing two different sources of NSA data collection. The first source the fiber optic cables of the internet handled by the Upstream program and the second source the servers of major internet companies handled by PRISM.
On May 28, 2013, Google was ordered by United States District Court Judge Susan Illston to comply with a National Security Letter issued by the FBI to provide user data without a warrant. Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation, in an interview with VentureBeat said, “I certainly appreciate that Google put out a transparency report, but it appears that the transparency didn’t include this. I wouldn’t be surprised if they were subject to a gag order.”
The New York Times reported on June 7, 2013, that “Twitter declined to make it easier for the government. But other companies were more compliant, according to people briefed on the negotiations.” The other companies held discussions with national security personnel on how to make data available more efficiently and securely. In some cases, these companies made modifications to their systems in support of the intelligence collection effort. The dialogues have continued in recent months, as General Martin Dempsey, the chairman of the Joint Chiefs of Staff, has met with executives including those at Facebook, Microsoft, Google and Intel. These details on the discussions provide insight into the disparity between initial descriptions of the government program including a training slide which states “Collection directly from the servers” and the companies’ denials.
While providing data in response to a legitimate FISA request approved by FISC is a legal requirement, modifying systems to make it easier for the government to collect the data is not. This is why Twitter could legally decline to provide an enhanced mechanism for data transmission. Other than Twitter, the companies were effectively asked to construct a locked mailbox and provide the key to the government, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information. Google does not provide a lockbox system, but instead transmits required data by hand delivery or secure FTP.
Post-PRISM Transparency Reports
In response to the publicity surrounding media reports of data-sharing, several companies requested permission to reveal more public information about the nature and scope of information provided in response to National Security requests.
On June 14, 2013, Facebook reported that the U.S. Government had authorized the communication of “about these numbers in aggregate, and as a range.” In a press release posted to their web site, Facebook reported, “For the six months ending December 31, 2012, the total number of user-data requests Facebook received from any and all government entities in the U.S. (including local, state, and federal, and including criminal and national security-related requests) – was between 9,000 and 10,000.” Facebook further reported that the requests impacted “between 18,000 and 19,000″ user accounts, a “tiny fraction of one percent” of more than 1.1 billion active user accounts.
Microsoft reported that for the same period, it received “between 6,000 and 7,000 criminal and national security warrants, subpoenas and orders affecting between 31,000 and 32,000 consumer accounts from U.S. governmental entities (including local, state and federal)” which impacted “a tiny fraction of Microsoft’s global customer base”.
Google issued a statement criticizing the requirement that data be reported in aggregated form, stating that lumping national security requests with criminal request data would be “a step backwards” from its previous, more detailed practices on its site transparency report. The company said that it would continue to seek government permission to publish the number and extent of FISA requests.
Response from United States government
Shortly after publication of the reports by The Guardian and The Washington Post, the United States Director of National Intelligence, James Clapper, on June 7 released a statement confirming that for nearly six years the government of the United States had been using large internet services companies such as Google and Facebook to collect information on foreigners outside the United States as a defense against national security threats. The statement read in part, “The Guardian and The Washington Post articles refer to collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act. They contain numerous inaccuracies.” He went on to say, “Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.” Clapper concluded his statement by stating “The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.” On March 12, 2013, Clapper had told the United States Senate Select Committee on Intelligence that the NSA does “not wittingly” collect any type of data on millions or hundreds of millions of Americans. In an NBC News interview, Clapper said he answered Senator Wyden’s question in the “least untruthful manner by saying no”.
Clapper also stated that “the NSA collects the phone data in broad swaths, because collecting it (in) a narrow fashion would make it harder to identify terrorism-related communications. The information collected lets the government, over time, make connections about terrorist activities. The program doesn’t let the U.S. listen to people’s calls, but only includes information like call length and telephone numbers dialed.”
On June 8, 2013, Clapper said “the surveillance activities published in The Guardian and The Washington Post are lawful and conducted under authorities widely known and discussed, and fully debated and authorized by Congress.” The fact sheet described PRISM as “an internal government computer system used to facilitate the government’s statutorily authorized collection of foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).”
The National Intelligence fact sheet further stated that “the United States Government does not unilaterally obtain information from the servers of U.S. electronic communication service providers. All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence.” It said that the Attorney General provides FISA Court rulings and semi-annual reports about PRISM activities to Congress, “provid[ing] an unprecedented degree of accountability and transparency.”
The President of the United States, Barack Obama, said on June 7 “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout.” He also said, “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.”
In separate statements, senior (not mentioned by name in source) Obama administration officials said that Congress had been briefed 13 times on the programs since 2009.
In contrast to their swift and forceful reactions the previous day to allegations that the government had been conducting surveillance of United States citizens’ telephone records, Congressional leaders initially had little to say about the PRISM program the day after leaked information about the program was published. Several lawmakers declined to discuss PRISM, citing its top-secret classification, and others said that they had not been aware of the program. After statements had been released by the President and the Director of National Intelligence, some lawmakers began to comment:
Senator John McCain (R-AZ)
- June 9 “We passed the Patriot Act. We passed specific provisions of the act that allowed for this program to take place, to be enacted in operation,”
Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee
- June 9 “These programs are within the law”, “part of our obligation is keeping Americans safe”, “Human intelligence isn’t going to do it”.
- June 9 “Here’s the rub: the instances where this has produced good — has disrupted plots, prevented terrorist attacks, is all classified, that’s what’s so hard about this.”
- June 11 “It went fine…we asked him[ Keith Alexander ] to declassify things because it would be helpful (for people and lawmakers to better understand the intelligence programs).” “I’ve just got to see if the information gets declassified. I’m sure people will find it very interesting.”
Senator Susan Collins (R-ME), member of Senate Intelligence Committee and past member of Homeland Security Committee
- June 11 “I had, along with Joe Lieberman, a monthly threat briefing, but I did not have access to this highly compartmentalized information” and “How can you ask when you don’t know the program exists?”
Representative John Boehner (R-OH), Speaker of the House of Representatives
- June 11 “He’s a traitor” (referring to Edward Snowden)
Representative Jim Sensenbrenner (R-WI), principal sponsor of the Patriot Act
- June 9, “This is well beyond what the Patriot Act allows.” “President Obama’s claim that ‘this is the most transparent administration in history’ has once again proven false. In fact, it appears that no administration has ever peered more closely or intimately into the lives of innocent Americans.”
Representative Mike Rogers (R-MI), a Chairman of the Permanent Select Committee on Intelligence.
- June 9 “One of the things that we’re charged with is keeping America safe and keeping our civil liberties and privacy intact. I think we have done both in this particular case,”
- June 9 “Within the last few years this program was used to stop a program, excuse me, to stop a terrorist attack in the United States we know that. It’s, it’s, it’s important, it fills in a little seam that we have and it’s used to make sure that there is not an international nexus to any terrorism event that they may believe is ongoing in the United States. So in that regard it is a very valuable thing,”
Senator Mark Udall (D-CO)
- June 9 “I don’t think the American public knows the extent or knew the extent to which they were being surveilled and their data was being collected.” “I think we ought to reopen the Patriot Act and put some limits on the amount of data that the National Security (Agency) is collecting,” “It ought to remain sacred, and there’s got to be a balance here. That is what I’m aiming for. Let’s have the debate, let’s be transparent, let’s open this up”.
Representative Todd Rokita (R-IN)
- June 10 “We have no idea when they [ FISA ] meet, we have no idea what their judgments are”,
Senator Rand Paul (R-KY)
- June 6 “When the Senate rushed through a last-minute extension of the FISA Amendments Act late last year, I insisted on a vote on my amendment (SA 3436) to require stronger protections on business records and prohibiting the kind of data-mining this case has revealed. Just last month, I introduced S.1037, the Fourth Amendment Preservation and Protection Act,”
- June 9 “I’m going to be seeing if I can challenge this at the Supreme Court level. I’m going to be asking the Internet providers and all of the phone companies: ask your customers to join me in a class-action lawsuit.”
Representative Luis Gutierrez (D-IL)
- June 9 “We will be receiving secret briefings and we will be asking, I know I’m going to be asking to get more information. I want to make sure that what they’re doing is harvesting information that is necessary to keep us safe and not simply going into everybody’s private telephone conversations and Facebook and communications. I mean one of the, you know the terrorists win when you debilitate freedom of expression and privacy.”
The Foreign Intelligence Surveillance Court (FISC) has not acknowledged, denied or confirmed any involvement in the PRISM program at this time. It has not issued any press statement or release relating to the current situation and uncertainty.
Applicable law and practice
On June 8, 2013, the Director of National Intelligence issued a fact sheet stating that PRISM “is not an undisclosed collection or data mining program”, but rather computer software used to facilitate the collection of foreign intelligence information “under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. § 1881a).” Section 702 provides that “the Attorney General [A.G.] and the Director of National Intelligence [DNI] may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” In order to authorize the targeting, the A.G. and DNI need to get an order from the Foreign Intelligence Surveillance Court (FISC) pursuant to Section 702 or certify that “intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order.” When asking for an order, the A.G. and DNI must certify to FISC that “a significant purpose of the acquisition is to obtain foreign intelligence information.” They do not need to specify which facilities or property that the targeting will be directed at.
After getting a FISC order or determining that there are emergency circumstances, the A.G. and DNI can direct an electronic communication service provider to give them access to information or facilities to carry out the targeting and keep the targeting secret. The provider then has the option to: (1) comply with the directive; (2) reject it; or (3) challenge it to FISC.
If the provider complies with the directive, it is released from liability to its users for providing the information and reimbursed for the cost of providing it.
If the provider rejects the directive, the A.G. may request an order from FISC to enforce it. A provider that fails to comply with FISC’s order can be punished with contempt of court.
Finally, a provider can petition FISC to reject the directive. In case FISC denies the petition and orders the provider to comply with the directive, the provider risks contempt of court if it refuses to comply with FISC’s order. The provider can appeal FISC’s denial to the Foreign Intelligence Surveillance Court of Review and then appeal the Court of Review’s decision to the Supreme Court by a writ of certiorari for review under seal.
The Senate Select Committee on Intelligence and the FISA Courts had been put in place to oversee intelligence operations in the period after the death of J. Edgar Hoover. Beverly Gage of Slate said, “When they were created, these new mechanisms were supposed to stop the kinds of abuses that men like Hoover had engineered. Instead, it now looks as if they have come to function as rubber stamps for the expansive ambitions of the intelligence community. J. Edgar Hoover no longer rules Washington, but it turns out we didn’t need him anyway.”
Involvement of other countries
The Australian government has said it will investigate the impact of the PRISM program and the use of the Pine Gap surveillance facility on the privacy of Australian citizens.
Canada’s national cryptologic agency, the Communications Security Establishment, said that commenting on PRISM “would undermine CSE’s ability to carry out its mandate”. Privacy Commissioner Jennifer Stoddart lamented Canada’s standards when it comes to protecting personal online privacy stating “We have fallen too far behind,” Stoddart wrote in her report. “While other nations’ data protection authorities have the legal power to make binding orders, levy hefty fines and take meaningful action in the event of serious data breaches, we are restricted to a ‘soft’ approach: persuasion, encouragement and, at the most, the potential to publish the names of transgressors in the public interest.” And, “when push comes to shove,” Stoddart wrote, “short of a costly and time-consuming court battle, we have no power to enforce our recommendations.”
Germany did not receive any raw PRISM data, according to a Reuters report.
Israeli newspaper Calcalist discussed the Business Insider article about the possible involvement of technologies from two secretive Israeli companies in the PRISM program – Verint Systems and Narus.
In New Zealand, University of Otago information science Associate Professor Hank Wolfe said that “under what was unofficially known as the Five Eyes Alliance, New Zealand and other governments, including the United States, Australia, Canada, and Britain, dealt with internal spying by saying they didn’t do it. But they have all the partners doing it for them and then they share all the information.”
In the United Kingdom, Government Communications Headquarters (GCHQ) has had access to the PRISM program on or before June 2010 and wrote 197 reports with it in 2012 alone. PRISM may have allowed GCHQ to circumvent the formal legal process required to seek personal material.
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The New York Times editorial board charged that the Obama administration “has now lost all credibility on this issue,” and lamented that “for years, members of Congress ignored evidence that domestic intelligence-gathering had grown beyond their control, and, even now, few seem disturbed to learn that every detail about the public’s calling and texting habits now reside in a N.S.A. database.”
Republican and former member of Congress Ron Paul said, “We should be thankful for individuals like Edward Snowden and Glenn Greenwald who see injustice being carried out by their own government and speak out, despite the risk…. They have done a great service to the American people by exposing the truth about what our government is doing in secret.” Paul denounced the government’s secret surveillance program: “The government does not need to know more about what we are doing…. We need to know more about what the government is doing.” He called Congress “derelict in giving that much power to the government,” and said that had he been elected president, he would have ordered searches only when there was probable cause of a crime having been committed, which he said was not how the PRISM program was being operated.
In response to Obama administration arguments that it could stop terrorism in the cases of Najibullah Zazi and David Headley, Ed Pilkington and Nicholas Watt of The Guardian said in regards to the role of PRISM and Boundless Informant interviews with parties involved in the Zazi scheme and court documents lodged in the United States and the United Kingdom indicated that “conventional” surveillance methods such as “old-fashioned tip-offs” of the British intelligence services initiated the investigation into the Zazi case. An anonymous former CIA agent said that in regards to the Headley case, “That’s nonsense. It played no role at all in the Headley case. That’s not the way it happened at all.” Pilkington and Watt concluded that the data-mining programs “played a relatively minor role in the interception of the two plots.” Michael Daly of The Daily Beast stated that even though Tamerlan Tsarnaev had visited Inspire and even though Russian intelligence officials alerted U.S. intelligence officials about Tsarnaev, PRISM did not prevent him from carrying out the Boston bombings, and that the initial evidence implicating him came from his brother Dzhokhar Tsarnaev and not from federal intelligence. In addition Daly pointed to the fact that Faisal Shahzad visited Inspire but that federal authorities did not stop his attempted terrorist plot. Daly concluded “The problem is not just what the National Security Agency is gathering at the risk of our privacy but what it is apparently unable to monitor at the risk of our safety.” In addition, political commentator Bill O’Reilly criticized the government, saying that PRISM did not stop the Boston bombings.
In a blog post, David Simon, the creator of The Wire, compared the NSA’s programs, including PRISM, to a 1980s effort by the City of Baltimore to add dialed number recorders to all pay phones to know which individuals were being called by the callers; the city believed that drug traffickers were using pay phones and pagers, and a municipal judge allowed the city to place the recorders. The placement of the dialers formed the basis of the show’s first season. Simon argued that the media attention regarding the NSA programs is a “faux scandal.” George Takei, an actor who had experienced Japanese American internment, said that due to his memories of the internment, he felt concern towards the NSA surveillance programs that had been revealed.
The Electronic Frontier Foundation (EFF), an international non-profit digital-rights group based in the U.S., is hosting a tool, by which an American resident can write to their government representatives regarding their opposition to mass spying.
On June 11, 2013, the American Civil Liberties Union filed a lawsuit against the NSA citing that PRISM “violates Americans’ constitutional rights of free speech, association, and privacy”.
Reactions of Internet users in China were mixed between viewing a loss of freedom worldwide and seeing state surveillance coming out of secrecy. The story broke just before US President Barack Obama and Chinese President Xi Jinping met in California. When asked about NSA hacking China, the spokeswoman of Ministry of Foreign Affairs of the People’s Republic of China said “China strongly advocates cybersecurity”. The party-owned newspaper Liberation Daily described this surveillance like Nineteen Eighty-Four-style. Hong Kong legislators Gary Fan and Claudia Mo wrote a letter to Obama, stating “the revelations of blanket surveillance of global communications by the world’s leading democracy have damaged the image of the U.S. among freedom-loving peoples around the world.”
Sophie in ‘t Veld, a Dutch Member of the European Parliament, called PRISM “a violation of EU laws”.
Protests at Checkpoint Charlie in Berlin
The German Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar, condemned the program as “monstrous”. He further added that White House claims do “not reassure me at all” and that “given the large number of German users of Google, Facebook, Apple or Microsoft services, I expect the German government […] is committed to clarification and limitation of surveillance.” Steffen Seibert, press secretary of the Chancellor’s office, announced that Angela Merkel will put these issues on the agenda of the talks with Barack Obama during his pending visit in Berlin.
The Italian president of the Guarantor for the protection of personal data, Antonello Soro, said that the surveillance dragnet “would not be legal in Italy” and would be “contrary to the principles of our legislation and would represent a very serious violation”.
William Hague, the foreign secretary of the United Kingdom, dismissed accusations that British security agencies had been circumventing British law by using information gathered on British citizens by Prism saying, “Any data obtained by us from the United States involving UK nationals is subject to proper UK statutory controls and safeguards.” David Cameron said Britain’s spy agencies that received data collected from PRISM acted within the law: “I’m satisfied that we have intelligence agencies that do a fantastically important job for this country to keep us safe, and they operate within the law.” Malcolm Rifkind, the chairman of parliament’s Intelligence and Security Committee, said that if the British intelligence agencies were seeking to know the content of emails about people living in the UK, then they actually have to get lawful authority. The UK’s Information Commissioner’s Office was more cautious, saying it would investigate PRISM alongside other European data agencies: “There are real issues about the extent to which U.S. law agencies can access personal data of UK and other European citizens. Aspects of U.S. law under which companies can be compelled to provide information to U.S. agencies potentially conflict with European data protection law, including the UK’s own Data Protection Act. The ICO has raised this with its European counterparts, and the issue is being considered by the European Commission, who are in discussions with the U.S. Government.”
Ai Weiwei, a Chinese dissident, said “Even though we know governments do all kinds of things I was shocked by the information about the US surveillance operation, Prism. To me, it’s abusively using government powers to interfere in individuals’ privacy. This is an important moment for international society to reconsider and protect individual rights.”
Kim Dotcom, a German-Finnish Internet entrepreneur who owned Megaupload, which was closed by the U.S. federal government, said “We should heed warnings from Snowden because the prospect of an Orwellian society outweighs whatever security benefits we derive from Prism or Five Eyes.” The Hong Kong law firm representing Dotcom expressed a fear that the communication between Dotcom and the firm had been compromised by U.S. intelligence programs.
Russia has offered to consider an asylum request from Edward Snowden.
Taliban spokesperson Zabiullah Mujahid said “We knew about their past efforts to trace our system. We have used our technical resources to foil their efforts and have been able to stop them from succeeding so far.”
Related government Internet surveillance programs
A parallel program, code-named BLARNEY, gathers up metadata as it streams past choke points along the backbone of the Internet. BLARNEY’s summary, set down in the slides alongside a cartoon insignia of a shamrock and a leprechaun hat, describes it as “an ongoing collection program that leverages IC [intelligence community] and commercial partnerships to gain access and exploit foreign intelligence obtained from global networks.”
A related program, a big data visualization system based on cloud computing and free and open-source software (FOSS) technology known as “Boundless Informant”, was disclosed in documents leaked to The Guardian and reported on June 8, 2013. A leaked, top secret map allegedly produced by Boundless Informant revealed the extent of NSA surveillance in the U.S.