US Senate Votes To Keep Big Brother Internet Spying Unaccountable To The People

December 28th, 2012 | Posted by jclifford in Legislation | Liberty - (1 Comments)

Yesterday, the Senate voted on three proposed amendments to the legislation that will renew the infamous FISA Amendments Act for 5 more years. The original legislation makes no attempt to reform the FISA Amendments Act, but the three amendments that came up for a vote yesterday attempted to remedy that in small ways, placing small checks on the extraordinary, unconstitutional spying powers the FISA Amendments Act has unleashed.

The first of these amendments, the Leahy Amendment, sought to reduce the time that the FISA Amendments Act will be extended – from five years to three years. The Leahy Amendment was rejected on a 38 to 52 vote.

The second amendment, offered by Senator Jeff Merkley, attempted to end the secrecy around the legal justifications for the FISA Amendments Act. Under the FISA Amendments Act, spying on the Internet, wiretapping of wireless communications, opening of private email, and so on, takes place in absolute secret. Americans who have had their private conversations and online activities spied upon under the FISA Amendments Act are never told about it.

internet spyingThis secrecy creates an atmosphere that diminishes trust in the reality of our basic constitutional rights, such as freedom of speech, freedom of assembly, and freedom from unreasonable search and seizure. Americans know that their government has constructed a system that is capable of gathering vast amounts of information about their private lives, integrating its own online wiretaps with seizure of information that has been gathered by companies like Facebook and Google. Combined with that knowledge, Americans have complete ignorance of when, or even whether, this spying system has turned its gaze to examine their particular lives.

Thus, the Internet, which was once an arena of revitalized democracy, has been converted into a Panopticon. The psychology of the Panopticon is part of what allows Big Brother to maintain control in George Orwell’s nightmare of the future, 1984.

Defenders of the FISA Amendments Act have said that secrecy of online surveillance is essential, because evil terrorists might evade the spying if they knew it was taking place. However, in the many years that the FISA Amendments Act has been in effect, there is not a single case that they can identify in which, if Americans were told that their online activities were being watched by the government, a terrorist attack might have taken place.

The secrecy of the FISA Amendments Act goes even further, however. More than just the spying against Americans itself, the legal rulings that are used to justify the spying are also being kept secret from the American people. The FISA Amendments Act has created a growing area of American law that the American citizenry cannot possibly understand.

FISA Amendments Act powers are run through a FISA court, a group of unelected judges with identities that remain secret from the American people. The American people aren’t allowed to know when or where the FISA court meets, or what legal matters the FISA court is considering. The rulings of the court, which direct the application of the FISA Amendments Act spying, are also secret.

The second amendment to the FISA Amendments Act extension proposed yesterday would have, if passed, removed a small aspect of this secrecy.

The amendment, offered by Senator Jeff Merkley, would NOT have required the federal government to tell Americans when the electronic spying system of the FISA Amendments Act has searched through their private online documents.

The Merkley amendment would NOT have required the public election of FISA judges, or resulted in their identification.

The Merkley amendment would NOT have ended the secrecy about where or when the FISA court meets.

The Merkley amendment would NOT have ended the secrecy about the purposes of the FISA Amendments Act spying being pursued.

The Merkley amendment would have merely required the declassification of portions of FISA court rulings that describe the legal theory that justifies the use of FISA Amendments Act powers. Only a vague, general sense of the Executive Branch’s legal interpretation of FISA Amendemnts Act powers, and the FISA court’s response to that interpretation, would have been revealed.

The Senate decided, however, that even this tiny amount of government transparency would be intolerable. The Senate voted to defeat the Merkley amendment, 37 to 54.

The minority of senators who voted to support Merkley’s amendment are named below:

Daniel Akaka (D-HI)
Max Baucus (D-MT)
Mark Begich (D-AK)
Michael Bennet (D-CO)
Jeff Bingaman (D-NM)
Richard Blumenthal (D-CT)
Maria Cantwell (D-WA)
Benjamin Cardin (D-MD)
Thomas Carper (D-DE)
Kent Conrad (D-ND)
Chris Coons (D-DE)
Richard Durbin (D-IL)
Al Franken (D-MN)
Kirsten Gillibrand (D-NY)
Dean Heller (R-NV)
Amy Klobuchar (D-MN)
Patrick Leahy (D-VT)
Mike Lee (R-UT)
Carl Levin (D-MI)
Joe Manchin (D-WV)
Bob Menendez (D-NJ)
Jeff Merkley (D-OR)
Patty Murray (D-WA)
Ben Nelson (D-NE)
Rand Paul (R-KY)
Jack Reed (D-RI)
Harry Reid (D-NV)
Brian Schatz (D-HI)
Charles Schumer (D-NY)
Jeanne Shaheen (D-NH)
Debbie Stabenow (D-MI)
Jon Tester (D-MT)
Mark Udall (D-CO)
Tom Udall (D-NM)
James Webb (D-VA)
Ron Wyden (D-OR)

Most Americans, addled with visions of Sandy Hook and Fiscal Cliffs, and drowsy from feasting on figgy pudding, will remain completely ignorant that this vote ever took place. If they had taken the time to go beyond the end-of-year news summaries on cable television, might this vote have turned out differently?

Might pigs some day learn to fly?

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The Other Shoe: Massive Surveillance Network in Manhattan

May 3rd, 2010 | Posted by Jim Cook in Homeland Insecurity | Liberty | State and Local - (2 Comments)

Somebody drove an SUV up slightly onto a curb in New York City over the weekend, tried to light it on fire, and failed.

Maybe the person doing this was trying to scare people (“terrorism” is our modern word for “trying to scare people”). Maybe he was deranged. Maybe he was a prankster. We don’t know.

Nobody was killed. Nobody was hurt. Experts are saying that even if the SUV had successfully been lit on fire, it would only have caused damage in its immediate vicinity.

People have been causing damage to others in their immediate vicinity since people came into existence in axe fights and knife fights and gun fights and bar brawls. More people die from knife fights and gun fights and the like every year in the United States, year in and year out, than have ever died in a year from a terrorist bombing. If we’re going to be worried about any aspect of the SUV event, it should be the part where the SUV drove up onto the curb: 45,316 people died at the hands of a motor vehicle in the United States in 2006 (the last year for which complete data is available — 2007 data comes out later this month).

But no, we’re not going to see massive congressional hearings about bar brawls. We’re not going to get big 2-inch-tall headlines about the investigation of motor vehicle deaths. Instead, I can guarantee you we’re going to get wall-to-wall news coverage for the next month about this guy who tried to burn his SUV in Times Square, and we’re going to get multiple House and Senate hearings in which members of Congress pose for the cameras with incredulous questions about how a guy in Manhattan could possibly drive a car to Times Square with things in it, and how such cars and things could be prevented from entering New York City in the future. Safety! Fear! Protection! The Homeland! Using words like these, watch as politicians jostle for position in the push to turn New York City into our next airport security screening station.

The truth is, it’s already happening. Remember the New York City Surveillance Camera Project’s map showing how impossible it is to cross Manhattan without being photographed? People objected that many of the cameras were private. But in Midtown and Lower Manhattan, thanks to a grant from the Department of Homeland Security, those private and public cameras are being connected into a centralized network to keep the millions of people who live there under constant surveillance. Software to analyze patterns in movement will be able to automatically pick out nervous behavior such as a car circling a block.

It’s “a whole new area for us. It has a lot of promise; in that regard we are very enthusiastic about it,” says Police Commissioner Raymond Kelly. “There really isn’t a downside to it,” says another NYC official.

No downsides at all if you’re one of the watchers. Worthy of enthusiasm, unless you value your personal privacy and enjoy not living inside a Panopticon.

But it’s worth it, isn’t it? While more than 5,000 Americans die of workplace injuries each year, the quest to ensure that a guy doesn’t drive his SUV up onto the curb and try to light it on fire makes all these little sacrifices of privacy and autonomy and individuality all worthwhile.

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Senate Hides Behind Voice Vote To Make Your Life Transparent

February 25th, 2010 | Posted by Jim Cook in Democrats | Homeland Insecurity | Legislation | Liberty | Politics - (7 Comments)

You know what irks me the most about yesterday’s Senate vote to reauthorize Patriot Act Provisions without a single, solitary reform?

Oh, there are so many contenders. But right now, what irks me the most about this decision was that it was made without a moment of public debate on the Senate floor, passed by a voice vote.

The decision to pass Patriot Act reauthorization was made outside the regular process of public hearings and legislative debate, in closed-door meetings none of us were privy to. It was a private process that we weren’t granted access to. And a voice vote is a Senate procedure in which Senators don’t have to register their vote on paper; that way, a citizen can’t tell who acted in favor of Patriot Act reauthorization and who acted against it.

What this all boils down to is that in reauthorizing Patriot Act provisions without reform, the U.S. Senate voted to keep American citizens’ private lives nakedly transparent to the prying eyes of the U.S. Government — and did so in a way that will keep senators’ policy deliberations a conveniently private secret. Privacy for the powerful, no privacy for the rest of us. Our nation is a panopticon.

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Act NOW! On Thursday, Senate Decides Future of Surveillance in America

September 29th, 2009 | Posted by Jim Cook in Activism | Homeland Insecurity | Legislation | Liberty | Politics - (2 Comments)

The Senate Judiciary Committee has quietly scheduled this Thursday at 9:30 am to mark up legislation reauthorizing sections of the Patriot Act for four more years and revising the FISA Amendments Act to boot.

The markup matters, and you should contact your Senators before it happens. Here’s why.

Surveillance Matters
In 1791, Jeremy Bentham described the layout of a building called the Panopticon in which authorities (prison guards, employers, doctors, principals) could see everything that their subjects (prisoners, workers, patients, students) did while their own activities remained hidden. The object of the Panopticon: control for authorities, compliance by subjects.

In the 20th Century, social scientists confirmed what Jeremy Bentham intuited: that people have an unsettling tendency toward conformity and compliance, and that by manipulating the flow of information it is possible to maximize conformity and minimize dissent. The more that authority figures can insert themselves into your personal life, and the more they can hide their own actions, the more likely you are to comply with their explicit orders and implicit expectations, even when your own moral values stand for something different.

Your Government is Watching You
If you don’t want to be a sheep, if you want to live an independent life on your terms, then you should be concerned at news that your government has been watching you. Thanks to the FISA Amendments Act and the USA Patriot Act, the U.S. Government has been violating the letter and the spirit of the Fourth Amendment to the U.S. Constitution, which is supposed to be the supreme law of the land and which guarantees:

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.

Under the Patriot Act, people can be targeted for surveillance on the basis of their First Amendment expressions of dissent. Once they are targeted, Americans can have their financial records and communications seized without the warrants that the 4th Amendment clearly requires. After the passage of the FISA Amendments Act, the Bush administration AND the Obama administration (no, that’s not a typo) carried out massive spying on Americans’ communications by phone and e-mail, again without constitutional warrants.

Why is your government watching you while it keeps its own activities as secret as possible? Control. Compliance. Your government may insist that it wants control and compliance for the best of reasons, but control and compliance are still the results. If you don’t want to live life like a sheep, then you should be concerned.

Enter the JUSTICE Act
S. 1686, the JUSTICE Act, is a bill that would begin to undo the damage to civil liberty wrought by the USA Patriot ACT and the FISA Amendments Act. It would, if passed:

* Restrict information collected in warrantless National Security Letters to information about the structure of interaction between individuals. Information about the content of interaction could not be collected without a warrant. Current law allows the government to seize the content of your interactions without a warrant.

* Restrict material collected. Those warrantless National Security Letters could only collect information regarding a person who is a suspected agent of a foreign power, a subject of an ongoing national security investigation, or is in some direct contact with either of the two. Current law allows the government to spy on people who know people who know people … (ad infinitum) … who know a suspect, all without a warrant.

* Protect free speech. Under the JUSTICE Act, people could not be made the target of NSLs solely on the basis of political statements made in exercise of free speech. Under current law, people can be put under surveillance because they make unpopular political statements.

* Require specificity in requests. NSLs and electronic surveillance must be specifically targeted and be time-limited in duration. Under current law, they need not be, even though the 4th Amendment to the Constitution declares that they must be.

* Mandate reports to the Congress and the American public about patterns in the use of National Security Letters and electronic surveillance. Current law does not require these reports.

* Introduce the right of some judicial review for the targets of National Security Letters and electronic surveillance and for the corporations and individuals who are told to help the government spy on people without warrants. Current law provides little to no such judicial review.

* Require that information collected in contravention of the law be destroyed. Current law allows illegally collected information to be kept by the government.

* Revoke retroactive immunity for telecommunications corporations that broke the law to give the government Americans’ private information. Current law immunizes corporations that broke the law and violated your privacy.

* Forbid the “bulk collection” of all communication between the United States and the rest of the world, and forbid “reverse targeting:” the surveillance of foreigners in order to spy without warrants on the Americans they communicate with. Under current law, bulk collection and reverse targeting are allowed to occur.

These are just the highlights. To get a fuller idea of the scope of S. 1686, read it for yourself. If you don’t want to live your life like a herded sheep, and if you want your fellow Americans to be afforded their constitutional rights, the JUSTICE Act is a bill worth supporting.

Senate Consideration of Surveillance: Full Stop on Thursday
As I mentioned at the top of this article, this upcoming Thursday morning (just two days from tomorrow morning) the Senate Judiciary Committee is meeting to mark up Senator Patrick Leahy‘s favored bill reauthorizing sections of the Patriot Act for four more years. Leahy’s bill offers some mild revisions to the Patriot Act and the FISA Amendments Act, but is not nearly as broad in scope or strong in effect as S. 1686, the bill introduced by Senator Russell Feingold. Patrick Leahy is the chair of the Judiciary Committee; Russ Feingold is only a member. This means that without the intervention of audible public opinion, Leahy’s tepid bill is more likely to proceed out of committee and Feingold’s stronger bill will be stuck in committee.

This is where you come in. As of today, only 10 Senators have signed on in support of S. 1686:

Sen. Russell Feingold (D-WI) — principal sponsor
Sen. Daniel Akaka (D-HI)
Sen. Jeff Bingaman (D-NM)
Sen. Richard Durbin (D-IL)
Sen. Robert Menendez (D-NJ)
Sen. Jeff Merkley (D-OR)
Sen. Bernard Sanders (I-VT)
Sen. Jon Tester (D-MT)
Sen. Tom Udall (D-NM)
Sen. Ron Wyden (D-OR)

Only two of those Senators are members of the Senate Judiciary Committee. There are NO Republicans on the Senate Judiciary Committee who have a record of supporting Americans’ fourth amendment liberties, so they cannot be counted on. That leaves the following Democratic members of the Senate Judiciary Committee who remain unspoken for, on the fence, and hopefully open to some reform:

Senator Ben Cardin of Maryland. DC Office Phone #: 202-224-4524

Senator Dianne Feinstein of California. DC Office Phone #: 202-224-3841

Senator Al Franken of Minnesota. DC Office Phone #: 202-224-5641

Senator Ted Kaufman of Delaware. DC Office Phone #: 202-224-5042

Senator Amy Klobuchar of Minnesota. DC Office Phone #: 202-224-3244

Senator Herb Kohl of Wisconsin. DC Office Phone #: 202-224-5653

Senator Chuck Schumer of New York. DC Office Phone #: 202-224-6542

Senator Arlen Specter of Pennsylvania. DC Office Phone #: 202-224-4254

Senator Sheldon Whitehouse of Rhode Island. DC Office Phone #: 202-224-2921

If you live in California, Delaware, Maryland, Minnesota, New York, Pennsylvania, Rhode Island or Wisconsin, call your Senator listed above and please ask them to do two things:

1. Cosponsor S. 1686, the JUSTICE Act, as a way of showing public support for the strongest FISA and Patriot Act reform legislation before the Senate.

2. Should another bill such as Leahy’s be passed from the Senate Judiciary Committee, attach JUSTICE Act provisions to it in order to make whatever bill makes it out of committee as strong as possible a restoration of Americans’ 4th Amendment rights.

It’ll take you five minutes, and I promise you that once you’ve done it you’ll feel good about it. I’m going to name names. Tom, I know you’ve said you live in Pennsylvania. Can you make the call? J. Clifford, you live in one of these states. Can you make the call? Kevin, ReMarker, qs, and every other person who comments here or reads here: do YOU live in one of these states with a Judiciary Senator? Can YOU make the call?

There are only two days left to take this simple yet vitally important action. Please do what you can. Thanks.

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On Police Cameras and Satellites Spying On Us

June 16th, 2009 | Posted by jclifford in Legislation | Liberty - (3 Comments)

Yesterday, in response to an article about the growing threats to liberty created by the National Applications Office within the Department of Homeland Security, our reader Jacob posed some important questions about the similarities of the NAO’s spy satellites and police surveillance cameras.

If the police can conduct a patrol the streets, looking for evidence of crime, Jacob wondered, why couldn’t law enforcement use military spy satellites to look down and watch over the United States, just on a larger scale? The idea of satellites watching what we do feels creepy, but is it really unconstitutional? Furthermore, aren’t police already putting up surveillance cameras all over the country? Isn’t a military spy satellite just a big police surveillance camera in the sky?

The answers to these questions can be found through the consideration of an earmark a Republican congressman from Texas, Lamar Smith, stuck into an unrelated piece of legislation yesterday. Representative Smith’s earmark would have the federal government provide a quarter of a million dollars to the police department in Austin, Texas, for the purpose of setting up a series of police spy cameras and a remote viewing center capable of recording and storing the images captured by the cameras. The Austin Police Department plans to set up the cameras to conduct surveillance in two sorts of locations: “pedestrian-heavy” and “high-crime”.

Is this program constitutional? Consider what the Fourth Amendment, in the Bill of Rights, requires of any search conducted by law enforcement or other government agencies:

“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.”

austin police surveillance cameraThe key factors to consider in the case of the earmark for the Austin Police Department’s surveillance cameras is that search cannot be conducted by the police if:

A. The search is considered unreasonable,
B. There is no search warrant
C. There is no probable cause to suspect criminal activity
D. There is a failure to identify a particular place to be searched

If any one of these four items is missing from the police surveillance operation, it’s violation of the Constitution of the United States of America.

Austin’s plan to install spy cameras in “high-crime” areas might be constitutional, depending on how an area is determined to be “high-crime”. A particular place would be specified for search, presumably with the probable cause of an established pattern of criminal behavior. Most people would consider these cameras reasonable, presuming that they weren’t improperly used, or made permanent. An area that is “high-crime” one year might have no crime at all in other years, after all. If a warrant is sought to authorize the use of spy cameras for a limited time in these areas, the operation could take place within the parameters required by the Fourth Amendment. A good deal of oversight of the operation would be called for, to make sure that abuse of the cameras was not taking place.

The city’s plans for cameras to constantly watch over “pedestrian-heavy” areas does not meet the necessary criteria for constitutionality, however. The selection of these locations for police surveillance cameras is not based on probable cause. It’s probable that crimes will take place in “pedestrian-heavy” locations only to the extent that pedestrians are people, and it’s people who commit crimes. Walking is not reasonably considered a suspicious activity meriting police monitoring. There is no specific crime targeted in these areas.

The justification offered by Lamar Smith for these non-specific police spy operations without probable cause is that, “Police cameras have been shown to reduce crime”. Maybe that’s so, and maybe it isn’t. Regardless of that it, it’s not a constitutional foundation for search. Instant executions of anyone suspected of a crime may be shown to reduce crime, but they’re not something a free society can tolerate.

Fundamentally, that’s the difference between a police camera used for a limited time to target a specific location during the course of a particular crime spree, and the a police camera that films a particular location just because a large number of people walk there. The former is reasonable, and the latter is unreasonable, and therefore not allowed by the highest law of our nation.

Yet, one might argue, police are allowed to patrol the streets, watching in public spaces, just in case a crime is committed. They don’t need a search warrant for that, so what’s the problem with using a camera instead of a police officer’s eyes?

The difference between a camera and the eyes of a police officer is that a camera records and stores information continually, whereas a police officer does not. A police officer driving down the street does not take photographs or video of everyone he sees, and then place that information into a central database. If a police officer did so, he would be engaged in unreasonable and unconstitutional behavior. A police officer is a highly selective information gathering tool. A camera is not.

The people of Austin have good reason to worry about the cameras to be installed in “pedestrian-heavy” areas. These cameras will track people’s movements and activities, even when they are not suspected of any crime. The surveillance cameras will convert the Austin Police Department from a law enforcement agency into a city busybody squad. Worse than that, these anti-pedestrian spying operations will make the Austin Police Department into a citywide Big Brother, intimidating residents from acting freely. People don’t behave normally when they think they might be watched – even if they have no intention of committing a crime.

The military spy satellites of the National Applications Office are like the police cameras that target “pedestrian-heavy” areas – except they’re even worse. The military spy satellites don’t even have the justification of watching over particular areas where people walk. No one outside of a few secretive offices within the government knows where those satellites are watching, and where they aren’t. There’s no particular location, no probable cause, and no search warrant. These satellite spy operations are profoundly in violation of Americans’ constitutional right to protection from unreasonable search and seizure.

Probably, these military spy satellites are not watching your neighborhood right now. However, you could reasonably wonder whether they are. If you attend a protest, a satellite could be taking pictures of the event. If you travel to meet with an activist group, a satellite might be recording your movements. If you’re going to a political rally to support a candidate for public office, a satellite may be storing information about your political affiliation. Maybe not, but you just don’t know.

The spy satellite operations of the National Applications Office place each and every one of us in a panopticon, a virtual prison in which we are treated as criminally suspect, and under constant threat of surveillance, though we’ll never really know whether we’re being spied upon at all. Conditions like this are corrosive to a free society, and so, although it’s created with the of excuse of a need for security, the National Application Office’s panopticon nation is itself the source of a systematic American insecurity.

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