Judge: NSA domestic phone data-mining unconstitutional

[frigidmagi]

CNN

A federal judge said Monday that he believes the government's once-secret collection of domestic phone records is unconstitutional, setting up likely appeals and further challenges to the data mining revealed by classified leaker Edward Snowden.

U.S. District Judge Richard Leon said the National Security Agency's bulk collection of metadata -- phone records of the time and numbers called without any disclosure of content -- apparently violates privacy rights.
His preliminary ruling favored five plaintiffs challenging the practice, but Leon limited the decision only to their cases.
NSA phone surveillance unconstitutional?

"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval," said Leon, an appointee of President George W. Bush. "Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."

Leon's ruling said the "plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim," adding "as such, they too have adequately demonstrated irreparable injury."
He rejected the government's argument that a 1979 Maryland case provided precedent for the constitutionality of collecting phone metadata, noting that public use of telephones had increased dramatically in the past three decades.

Leon also noted that the government "does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature."

However, he put off enforcing his order barring the government from collecting the information, pending an appeal by the government.

A Justice Department spokesman said Monday that "we believe the program is constitutional as previous judges have found," but said the ruling is being studied.

Democratic Sen. Mark Udall of Colorado, a critic of the NSA data mining, said Leon's ruling showed that "the bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer."

He called on Congress to pass legislation he proposed to "ensure the NSA focuses on terrorists and spies - and not innocent Americans."

Explosive revelations earlier this year by Snowden, a former NSA contractor, triggered new debate about national security and privacy interests in the aftermath of the September 2001 terrorist attacks.

Snowden's revelations led to more public disclosure about the secretive legal process that sets in motion the government surveillance.

In a statement distributed by journalist Glenn Greenwald, who first reported the leaks, Snowden said he acted on the belief that the mass surveillance program would not withstand a constitutional challenge, and that Americans deserved a judicial review.

"Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many," according to Snowden, who is living in Russia under a grant of asylum to avoid prosecution over the leaks in the United States.

Greenwald said the judge's ruling vindicates what Snowden did.

"I think it's not only the right, but the duty of an American citizen in Edward Snowden's situation to come forward, at great risk to himself, and inform his fellow citizens about what it is their government is doing in the dark that is illegal," the journalist told CNN's "Anderson Cooper 360" Monday night.

The NSA has admitted it received secret court approval to collect vast amounts of metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook.

The case before Leon involved approval for surveillance in April by a judge at the Foreign Intelligence Surveillance Court (FISC), a secret body that handles individual requests for electronic surveillance for "foreign intelligence purposes."

Verizon Business Network Services turned over the metadata to the government.

Leon's ruling comes as the Obama administration completes a review of NSA surveillance in the aftermath of the Snowden leaks.

CNN's Jake Tapper reported Monday that tech company executives would meet with President Barack Obama at the White House on Tuesday to discuss the issue.

Obama plans to sit down with Tim Cook of Apple and Eric Schmidt of Google, as well as executives from Twitter, Microsoft, Facebook, Salesforce, Netflix , Etsy, Dropbox, Yahoo!, Zynga, Sherpa Global, Comcast, LinkedIn and AT&T, a White House official said.

Some of those companies issued a joint letter last week calling on the government to change its surveillance policies in the wake of the Snowden revelations.

Last month, the Supreme Court refused to take up the issue when it denied a separate petition, which was filed by the Electronic Information Privacy Center. Prior lawsuits against the broader NSA program also have been unsuccessful.

Days after the Snowden disclosure in June, some Verizon customers filed legal challenges in the D.C. federal court.
The left-leaning American Civil LIberties Union also filed a separate, pending suit in New York federal court.

Under the Foreign Intelligence Surveillance Act of the 1970s, the secret courts were set up to grant certain types of government requests-- wiretapping, data analysis, and other monitoring of possible terrorists and spies operating in the United States.

The Patriot Act that Congress passed after the 9/11 attacks broadened the government's ability to conduct anti-terrorism surveillance in the United States and abroad, eventually including the metadata collection.
In order to collect the information, the government has to demonstrate that it's "relevant" to an international terrorism investigation.

However, the 1978 FISA law lays out exactly what the special court must decide: "A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person."

In defending the program, NSA Director Gen. Keith Alexander told the Senate Judiciary Committee last week that "15 separate judges of the FISA Court have held on 35 occasions that Section 215 (of the Patriot Act) authorizes the collection of telephony metadata in bulk in support of counterterrorism investigations."

Initially, telecommunications companies such as Verizon, were the targets of legal action against Patriot Act provisions. Congress later gave retroactive immunity to those private businesses.

The revelations of the NSA program and the inner workings of the FISC court came after Snowden leaked documents to the Guardian newspaper. Snowden fled to Hong Kong and then Russia to escape U.S. prosecution.

[LadyTevar]

[SirNitram]

The overturning of Smith is very interesting, and the Judge was right to note the situations are vastly different.

[LadyTevar]

The way I understood this, one part of the Judge's decision was how the switch from analog to digital signals changed the way that recording was done. Wiretapping was no longer plugging the actual wire, it was far more complicated and the pressure it put on corporations and private citizens went above and beyond the orginial intent.

[SirNitram]

The way I understood this, one part of the Judge's decision was how the switch from analog to digital signals changed the way that recording was done. Wiretapping was no longer plugging the actual wire, it was far more complicated and the pressure it put on corporations and private citizens went above and beyond the orginial intent.

No.

Smith was for the old rotary dial, where it was a labour to get one person's, and was generally a tool of the local police. The modern telecomm networks make a mockery of the ideas of then, and this simply turns over Smith's exception to the Fourth.

[rhoenix]

An update today, from securityweek:

WASHINGTON - US legal and intelligence experts ordered by President Barack Obama to review National Security Agency practices on Wednesday called for a sweeping overhaul of US surveillance programs while preserving "robust" intelligence capabilities.

The five-member panel of advisers also urged reforms at a secret national security court and an end to bulk retention of telephone "metadata" by the spy agency, by keeping those records in private hands subject to specific queries from the NSA or law enforcement.

The 308-report also called for "significant steps" to be taken "to protect the privacy of non-US persons," and urged more cooperation with allies to avoid the diplomatic fallout from revelations of US intelligence gathering.

Obama commissioned the review panel report earlier this year in the wake of explosive revelations by fugitive intelligence contractor Edward Snowden on the stunning scope of the NSA's operations.

"It is now time to step back and take stock," the panel said in its report, which was submitted last week to the White House and released publicly Wednesday.

"We conclude that some of the authorities that were expanded or created in the aftermath of September 11 unduly sacrifice fundamental interests in individual liberty, personal privacy, and democratic governance," it said.

The panel said it hoped its recommendations would "strike a better balance between the competing interests in providing for the common defense and securing 'the Blessings of Liberty to ourselves and our Posterity'."

The review board steered away from calling for outright curbs on intelligence on foreign leaders, but said any such surveillance must be based on real security threats and be approved at the highest levels.

"This process should identify both the uses and the limits of surveillance on foreign leaders and in foreign nations," the report said.

Richard Clarke, a former White House counterterrorism aide who is a member of the review board, said, "We are not saying the struggle against terrorism is over."

But Clarke, who joined other review board members at a briefing, added there were "mechanisms that can be more transparent, can have more independent oversight" and cited the need to "give the public a sense of trust that goes beyond what it is today."

Panel members said the recommendations would not necessarily mean a rolling back of intelligence gathering, but that surveillance must be guided by standards and by high-level policymakers.

"In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, and gender," the report said.

One of the key recommendations is to reform the law allowing the NSA to hold phone records or "metadata" on millions of calls both within and outside the United States.

"In our view, the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy, and civil liberty," the report said.

The panel suggested that metadata be held by private providers or another private third party, with the government allowed access if "justified".

The report called for limits on "national security letters" that can be issued by the Federal Bureau of Investigation without court oversight to require firms to hand over information.

It also said the secret court handling foreign intelligence requests should have a "public interest advocate" so that it can hear more than only the government's arguments.

And the panel agreed with major technology companies which have been seeking to release more information on the numbers of national security requests they receive, and said the government should release numbers of its own.

The White House said the president "will work with his national security team to study the review group's report, and to determine which recommendations we should implement."

Obama is to give a speech to the American people in January to explain his reasoning, the White House said.

The president has already signaled through senior aides that he will not agree to appoint a civilian head of the NSA. He plans to stick to the tradition by which a uniformed military officer -- who also runs the US military's cyber warfare command -- will run the eavesdropping agency.

The release of the report comes amid deepening political pressure on the White House for significant reforms in the massive NSA telephone and Internet data mining operations in the United States and across the world.

Snowden's revelations -- which have White House officials scrambling to keep up -- have, according to intelligence chiefs, inflicted significant damage on US clandestine operations against terror groups, while deeply embarrassing the Obama administration.

A federal judge in Washington this week ruled that NSA programs, which have scooped up millions of details on telephone calls and Internet traffic on Americans and foreigners, were probably unconstitutional.

The ruling opened a long legal battle which is likely to end up in the Supreme Court.

The plot thickens, indeed.

[rhoenix]

Another update, from Christian Science Monitor:

The National Security Agency should stop collecting Americans’ telephone call “metadata,” instead letting phone companies keep the data describing trillions of calls, which the NSA could then search only with a court order, a panel advising President Obama recommends.

The recommendation was among the most significant made by the five-member Review Group on Intelligence and Communications Technologies, appointed by the president to respond to international and domestic anger over the NSA’s mass surveillance. Its conclusions, which include 46 recommendations, were released Wednesday a month ahead of schedule

The 308-page report was received favorably by some civil libertarians. “The committee went much further than anyone expected in increasing oversight of NSA surveillance activities,” says Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security program.

One cybersecurity expert saw the broad array of recommendations as a mixed bag. “It’s a mixture of good ideas and pet rocks,” says James Lewis of the Center for Strategic and International Security in Washington. “There are a lot of things in there we absolutely should do. But there are some things that don’t make much sense, things that require legislative change and that might be hard to get.”

For example, the report calls on Congress to allow telephone, Internet, and other providers to publicly disclose general information about orders they get from the government. In addition, the government should regularly publicly disclose general data about orders it has issued in unclassified programs, it concluded.

The report recommends key organizational changes in the way the NSA collects intelligence globally, including:

- The President should create a new process to approve sensitive intelligence activities.
- Congress should create a new position to represent the interests of privacy and civil liberties before the Foreign Intelligence Surveillance Court (FISC), which issues court orders on government surveillance requests.
- FISC decisions should be more transparent, and the process by which judges are appointed should be changed.
- An independent oversight board should be created with authority to review government activity relating to foreign intelligence.
- The National Security Agency director should be a Senate-confirmed position and should be open to civilians.
- The Defense Department’s US Cyber Command should be separated from the NSA, as should the Information Assurance Directorate (IAD).

For his part, cybersecurity expert Dr. Lewis suggests that increased transparency is needed, but the idea of having a group of lawyers arguing within the FISC against data collection is bad.

Meanwhile, Ms. Goitein of the Brennan Center worries that the report would not do much to limit the amount of information the NSA collects by accident on Americans. But it would “stop the government in most instances from searching for that info and exploiting that. That’s an important step,” she says.

The report follows a decision Monday by US District Judge Richard Leon to issue a temporary restraining order blocking the NSA’s telephone metadata collection program, saying it almost surely violates Fourth Amendment privacy protections.

The Obama administration has been on the defensive over the NSA since June, when information about the NSA’s surveillance programs, leaked by former NSA contractor Edward Snowden, began to surface.

Among other things, the revelations chronicled a mass roundup of cellphone data across Europe as well as the surveillance of European leaders, straining US ties with its allies in Europe. To address those concerns, the report recommends formalizing protections for “non-US persons.”

Any order to conduct surveillance against non-US persons should be required to satisfy six separate hurdles, which include having proper authorization and being tailored exclusively to protect national security interests.

The recommendations come as some members of Congress are ramping up pressure on the administration. Rep. Jim Sensenbrenner (R) of Wisconsin and Sen. Patrick Leahy (D) of Vermont, who helped write and pass the Patriot Act after 9/11, have introduced legislation that would block the collection of Americans' telephone metadata. Metadata includes information about a phone call – such as the location and duration of the call – but not the actual conversation.

Some of the strongest pressure is reported coming from large Internet companies. Officials from Yahoo, Microsoft, Facebook, and others met with Mr. Obama Tuesday and reportedly urged him to throttle back surveillance programs. One NSA program revealed by Mr. Snowden, code-named PRISM, required high-tech companies to share data with the agency. That sharing has hurt some US companies’ ability to do business in Europe and elsewhere.

The NSA has defended its actions, arguing on CBS’s “60 Minutes” Sunday that it had thwarted cyberattacks that could have turned computers in the US financial sector “into bricks.”

At a congressional hearing earlier this month, NSA director Gen. Keith Alexander said the telephone metadata program is a vital tool to tracking terrorists.

“There is no other way that we know of to connect the dots,” he said. “Taking the program off the table from my perspective is absolutely not the right thing to do.”

The five-person presidential advisory panel didn’t do that, but taking the database out from under the NSA’s roof would be a big change.

“The Review Group is hopeful that the recommendations made here might prove helpful in striking the right balance,” the group wrote in a blog post. “Free nations must protect themselves, and nations that protect themselves must remain free.”