Foreign Intelligence or Intelligence?

Adlai E. Stevenson III | Reader Supported News | February 7, 2014

he debate over the National Security Agency’s cyber surveillance and collection of telephone records should lead to a better balance between rights of privacy and requirements of foreign intelligence. But whatever the outcome of that debate, it has failed to acknowledge inherent deficiencies and risks in “foreign intelligence” and the transcendent role of foreign policy in the defense of our national interests. Important fundamentals that shape our national security policy will be unaddressed and unchanged.

Based on my years of experience as a member of the Senate Intelligence Committee and Chairman of its Subcommittee on the Collection and Production of Intelligence, I can say that effective congressional oversight and control of the military intelligence complex is something of an oxymoron. NSA and CIA directors reported to me in secret. Members of Congress don’t know what they don’t know, they don’t know what to ask, and they can’t disclose what they are told in secret. Although the Foreign Intelligence Surveillance Court may now have a Privacy and Civil Liberties Advocate, a potentially sound reform, that Advocate will be similarly handicapped.

Meanwhile, as a result of current policies, U.S. technology companies are damaged and forced to move operations out of the United States while indignant foreign governments take counter-measures against them. The financial costs of the military intelligence complex, including its tens if not hundreds of thousands of private contractors, are now estimated to exceed $70 billion annually. A new international commission is being organized to give the protection of privacy a multi-national dimension.

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Bad Times for Big Brother

Image by None via CrunchBase

THE EDITORIAL BOARD | New York Times | December 21, 2013

It has been a long week for the National Security Agency. Last Monday, a federal judge ruled for the first time that the agency’s continuing sweep of Americans’ phone data — a once-secret program legally sanctioned for seven years and illegally conducted for five years before that — was very likely unconstitutional. Judge Richard Leon denounced the agency’s activities in collecting data on all Americans’ phone calls as “almost Orwellian.”

Two days later, the Obama administration released a comprehensive report that found “the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy and civil liberty.” And last Friday, the latest release of classified documents from Edward Snowden revealed surveillance efforts that included the office of the Israeli prime minister and the heads of international companies and aid organizations.

If the N.S.A. had not already gotten the message, the 300-plus-page advisory report, by a panel of intelligence and legal experts selected by President Obama, surely drove it home. All three branches of the federal government are now on record as recognizing that the agency has repeatedly misused, if not plainly abused, its powers, and that it must be reined in. The report’s 46 wide-ranging recommendations include stopping the bulk collection and storage of phone data, reforming the structure and processes of the Foreign Intelligence Surveillance Court, installing a civil liberties advocate to argue against the government’s position in that court, and introducing stricter oversight of the agency’s actions across the board.

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Court files: NSA engaged in “systematic overcollection”

Natasha Lennard | Salon | Social Reader | November 19, 2013

Director of National Intelligence James Clapper       (Credit: Reuters/Kevin Lamarque)

Newly declassified (although heavily redacted) government documents revealed for the first time last Monday how the secretive FISA court enabled the NSA to begins its vast dragnet program surveilling Americans’ online metadata.

The FISA files illustrate how the spy agency’s mass surveillance practices were inscribed into law, but also highlight how even the FISA judges were concerned and surprised by the extent of the dragnet spycraft. Court orders also released Monday show that the NSA “systematically” skirted the rules by engaging in consistent “overcollection.”

One court document published shows how a FISA judge ruled, along with a single 1979 Supreme Court decision on which the NSA still relies, that metadata should enjoy no Fourth Amendment protection. This, despite the fact that technologists have agreed that metadata provides an immense amount of information on persons and their networks.

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Official releasing what appears to be original court file authorizing NSA to conduct sweeps

National Security Agency Seal (Photo credit: DonkeyHotey)

Ellen Nakashima, Greg Miller | The Washington Post | Social Reader | November 19, 2013

The director of national intelligence on Monday night released what appeared to be the original court document authorizing the National Security Agency to conduct sweeping collections of Americans’ communications records for counterterrorism purposes.

The order, signed by the then-chief judge of the Foreign Intelligence Surveillance Court, was among nearly 1,000 pages of documents being released by James R. Clapper Jr. in response to lawsuits and a directive by President Obama. The documents also describe the NSA’s failure to abide by court-imposed rules to protect Americans’ privacy, and show that the agency was more interested in collecting cell site location data than it had previously acknowledged.

The opinion signed by Judge Colleen Kollar-Kotelly permitted the NSA to gather in bulk information about e-mail and other forms of Internet communication such as e-mail addresses, but not the content. Its true scope, however, was unclear. Three pages describing the categories of “metadata” that the NSA proposed to collect were redacted.

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Latest Release of Documents on N.S.A. Includes 2004 Ruling on Email Surveillance

Seal of the Office of the Director of National Intelligence. See more information: http://www.odni.gov/aboutODNI/DNIseal.htm (Photo credit: Wikipedia)

CHARLIE SAVAGE and JAMES RISEN | New York Times | November 18, 2013

WASHINGTON — The Obama administration released hundreds of pages of newly declassified documents related to National Security Agency surveillance late Monday, including an 87-page ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.

“The raw volume of the proposed collection is enormous,” wrote Judge Colleen Kollar-Kotelly, who was then the chief judge on the secret surveillance court. The government censored the date of her ruling in the publicly released document, and many sections — including a description of what she had been told about terrorism threats — were heavily redacted.

The ruling was among a trove of documents that were declassified and made public by the Office of the Director of National Intelligence in response to Freedom of Information Act lawsuits, including those by the American Civil Liberties Union and the Electronic Freedom Foundation.

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Congress and Courts Weigh Restraints on N.S.A. Spying

Gabriella Demczuk/The New York Times

Senator Ron Wyden, Democrat of Oregon, has proposed a battery of new disclosure requirements for intelligence agencies.

ADAM LIPTAK and JEREMY W. PETERS | New York Times | November 18, 2013

WASHINGTON — Congressional critics of the National Security Agency program that collects the telephone records of millions of Americans stepped up their efforts as the Supreme Court on Monday turned away an unusual challenge to the scope of the surveillance.

The intensifying push against the N.S.A. on both the legal and legislative fronts reflected new pressure being put on the extensive surveillance effort in the wake of revelations by the former N.S.A. contractor Edward J. Snowden, pressure that is running into stiff resistance from congressional leaders of both parties as well as the Obama administration.

The Electronic Privacy Information Center filed the challenge directly with the Supreme Court, arguing that the Foreign Intelligence Surveillance Court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”

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Effort underway to declassify document that is legal foundation for NSA phone program

Ellen Nakashima,Carol D. Leonnig | The Washington Post | Social Reader | October 13, 2013

In the recent stream of disclosures about National Security Agency surveillance programs, one document, sources say, has been conspicuously absent: the original — and still classified — judicial interpretation that held that the bulk collection of Americans’ data was lawful.

That document, written by Colleen Kollar-Kotelly, then chief judge of the Foreign Intelligence Surveillance Court (FISC), provided the legal foundation for the NSA amassing a database of all Americans’ phone records, say current and former officials who have read it.

Now, more officials are saying that Americans should be able to read and understand how an important precedent was established under the 2001 USA Patriot Act, which was passed after the Sept. 11, 2001, attacks.

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Court: NSA Can Continue Sweeping Phone Data Collection

Image by None via CrunchBase

Brendan Sasso | The Hill | October 13, 2013

The Foreign Intelligence Surveillance Court has granted the National Security  Agency (NSA) permission to continue its collection of records on all U.S. phone  calls.

The Office of the Director of National Intelligence announced the court’s  approval in a statement  late Friday. The court authorizes the program for only limited time periods and  requires that the government submit new requests every several months for  re-authorization.

The existence of the bulk phone data collection was one of the most  controversial revelations from the leaks by Edward Snowden.

The NSA uses the program to collect records such as phone numbers, call times  and call durations on all U.S. phone calls—but not the contents of any  conversations, according to the administration.

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In Secret, FISA Court Contradicted US Supreme Court on Constitutional Rights

English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

Yochai Benkler | Guardian UK | Reader Supported News | September 22, 2013

Declassified Fisa rulings reveal a permissive approach to fourth amendment violations disturbingly at odds with supreme justices’

On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in which it explained why the government’s collection of records of all Americans’ phone calls is constitutional, and that if there is a problem with the program, it is a matter of political judgment, not constitutional law. So, should Americans just keep calm and carry on phoning? Not really.

Instead, we should worry about a court that, lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its position. The opinion does not even mention last year’s unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA’s phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.

The newly-released FISC opinion, the first to opine on the legality of the phone metadata collection program since the Snowden leaks brought the program to national attention, is based on two straightforward points.

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FISA Court: No Telecom Company Has Ever Challenged Phone Records Orders

Spencer Ackerman (Photo credit: Wikipedia)

Spencer Ackerman | Guardian UK | Reader Supported News | September 18, 2013

Judge says requests for mass customer data have not been challenged ‘despite the mechanism for doing so’

No telecommunications company has ever challenged the secretive Foreign Intelligence Surveillance court’s orders for bulk phone records under the Patriot Act, the court revealed on Tuesday.

The secretive Fisa court’s disclosure came inside a declassification of its legal reasoning justifying the National Security Agency’s ongoing bulk collection of Americans’ phone records.

Citing the  “unprecedented disclosures ” and the  “ongoing public interest in this program “, Judge Claire V Eagan on 29 August not only approved the Obama administration’s request for the bulk collection of data from an unidentified telecommunications firm, but ordered it declassified. Eagan wrote that despite the  “lower threshold ” for government bulk surveillance under Section 215 of the Patriot Act compared to other laws, the telephone companies who have received Fisa court orders for mass customer data have not challenged the law.

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