The American Bear


Senator Ron Wyden: "The government's authority is limitless." | Privacy SOS


Despite the efforts of the intelligence community leadership to downplay the privacy impact of the Patriot Act collection, the bulk collection of phone records significantly impacts the privacy of million of law­abiding Americans. If you know who someone called, when they called, where they called from, and how long they talked, you lay bare the personal lives of law­abiding Americans to the scrutiny of government bureaucrats and outside contractors.

This is particularly true if you’re vacuuming up cell phone location data, essentially turning every American’s cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans’ location information in bulk.

Especially troubling is the fact that there is nothing in the Patriot Act that limits this sweeping bulk collection to phone records. The government can use the Patriot Act’s business records authority to collect, collate and retain all sorts of sensitive information, including medical records, financial records, or credit card purchases. They could use this authority to develop a database of gun owners or readers of books and magazines deemed subversive. This means that the government’s authority to collect information on law­abiding American citizens is essentially limitless. If it is a record held by a business, membership organization, doctor, or school, or any other third party, it could be subject to bulk collection under the Patriot Act.

A Patriot Act History Lesson: How Prescient Warnings Were Mocked | Conor Friedersdorf

During the winter of 2006, the U.S. Senate was debating the re-authorization of the PATRIOT Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians led by then Senator Russ Feingold tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans, and warned about the likelihood of executive branch “fishing expeditions.”

Dismissive Senate colleagues scoffed at their concerns.

An exchange between Feingold and then Senator Jon Kyl of Arizona is illustrative of the way that civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.

The scene takes place on the Senate floor on February 16, 2006.

Feingold was trying to amend the PATRIOT Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government “extremely broad powers to secretly obtain people’s business records.”

Said Feingold:

The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records.

But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report - “relevance” — will still allow government fishing expeditions. That is unacceptable.

He went on:

Next, let me turn to judicial review of these Section 215 orders. After all, if we’re going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.

Today we know that Section 215 has been invoked by the government to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: the sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, “relevance,” turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult, but impossible to get meaningful judicial review.

But back in 2006, when Feingold remained a lonely voice in opposition to PATRIOT Act re-authorization, look at how Senator Kyl, speaking on the same day, derisively dismissed his concerns.

Said Kyl, opposing Feingold’s suggested amendments:

“There is no basis for delaying the PATRIOT Act.”

… “What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year.”

… “I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously.”

… “I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on… I thought I would take two of the amendments—we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act—the kind of amendments that would be offered. It shows how unnecessary this approach is.”

… “This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations… The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror…this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order… It serves no substantial interest but, as I said, can be very damaging to our national security.”

So thus far, Kyl has literally asserted not just that Feingold’s amendments are, on balance, wrongheaded, but that they serve no purpose or interest at all — and has suggested that the very effort to amend the PATRIOT Act isn’t just purposeless, but also a sign that Feingold doesn’t take Bin Laden seriously, which is to say, the cheapest rhetorical trick in the Senate playbook.

Kyl goes on to state:

“This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?

… The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term “relevance.” It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code.

So Feingold says that the “relevance” standard, in the context of secret national security investigations, is extremely broad, and that his colleagues should recognize its implications for the privacy of innocent Americans — and Kyl retorts that “relevance” is the same standard used all the time, that we’re all familiar with it, and that it’s “exactly” the standard used in criminal investigations.

There’s no other way to put it: Feingold has been proved right, and Kyl wrong.

As the Wall Street Journal put it Monday, under the headline “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering”:

The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word “relevant.”

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The ‘relevant’ language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006.

The article goes on:

“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.

“I think it’s a stretch” of previous federal legal interpretations, says Mr. Eckenwiler, who hasn’t seen the secret ruling. If a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

This is exactly how War on Terror hawks defeat civil libertarians: warnings that overly broad language will be twisted by the national security state are dismissed as paranoid time-wasting — why, relevance is the same standard used in all sorts of contexts, nothing worrisome to see here! Later, when the overly broad language is exploited in exactly the way civil libertarians anticipated, the same coalition that insisted such measures wouldn’t be permitted by the law suddenly claim that they’re perfectly legitimate legal interpretations of duly passed and signed legislation.

James Clapper: I gave 'erroneous' answer because I forgot about Patriot Act

The most senior US intelligence official told a Senate oversight panel that he “simply didn’t think” of the National Security Agency’s efforts to collect the phone records of millions of Americans when he testified in March that it did “not wittingly” snoop on their communications.

James Clapper, the director of national intelligence, made the comments in a letter to the Senate intelligence committee, released in full for the first time on Tuesday.

Portions of the letter, in which Clapper apologised for giving “clearly erroneous” testimony at a March hearing of the committee, were first reported by the Washington Post on Monday. Clapper had previously said that his answer to the committee was the “least untruthful” one he could publicly provide.

In the full letter, Clapper attempted to explain the false testimony by saying that his recollection failed him. “I simply didn’t think of Section 215 of the Patriot Act,” he wrote to committee chairwoman Dianne Feinstein (Democrat, California) on 21 June, referring to the legal provision cited to justify the mass collection of Americans’ phone data, first disclosed by the Guardian.

Sounds legit. Sometimes I forget about the magical piece of paper I keep in my back pocket to provide “legality” to my own intrusions into the private lives of millions of people too.

FBI sharply increases use of Patriot Act provision to collect US citizens' records - Open Channel

The Patriot Act provision, known as Section 215, allows the FBI to require the production of business records and any other “tangible things” — including “books, records, papers, documents and other items,” for an authorized terrorism or foreign intelligence investigation. The Patriot Act was a broad expansion of law enforcement powers enacted by Congress with overwhelming bipartisan support in the aftermath of the Sept. 11, 2001, terrorist attacks. In addition to Section 215, other provisions expanded the FBI’s power to issue so-called “national security letters,” requiring individuals and business to turn over a more limited set of records without any court order at all.

In contrast to standard grand jury subpoenas, material obtained under both Section 215 orders and national security letters must be turned over under so-called “gag orders” that forbid the business or institution that receives the order from notifying its customers or publicly referring to the matter.

From the earliest days of the Patriot Act, Section 215 was among the most hotly disputed of its provisions. Critics charged the language – “tangible things” — was so broad that it would even permit the FBI to obtain library and bookstore records to inspect what citizens were reading.

Largely to tamp down those concerns, then-Attorney General John Ashcroft declassified information about the FBI’s use of the provision in September 2003, saying in a statement that “the number of times Section 215 has been used to date is zero.” Ashcroft added that he was releasing the information “to counter the troubling amount of public distortion and misinformation” about Section 215.

But in the years since, the FBI’s use of Section 215 quietly exploded, with virtually no public notice or debate. In 2009, as part of an annual report to Congress, the Justice Department reported there had been 21 applications for business records to the Foreign Intelligence Surveillance Court (FISC) under Section 215 – all of which were granted, though nine were modified by the court. (The reports do not explain how or why the orders were modified.)

In 2010, the number of requests jumped to 205 (all again granted, with 176 modified.) In the latest report filed on April 30, the department reported there had been 212 such requests in 2012 – all approved by the court, but 200 of them modified.

These sharp increase in the use of Section 215 has drawn little attention until now because the number of national security letters (NSLs) issued by the bureau has been so much greater — 15,229 in 2012. But FBI Director Mueller, in little-noticed written responses to Congress two years ago, explained that the bureau was encountering resistance from telecommunications companies in turning over “electronic communication transaction” records in response to national security letters.

“Beginning in late 2009, certain electronic communications service providers no longer honored NSLs to obtain” records because of what their lawyers cited as “an ambiguity” in the law. (What Mueller didn’t say was this came at a time when all the major telecommunications companies were still facing lawsuits over their cooperation with the government on surveillance programs.) As a result, Mueller said, the FBI had switched over to demanding the same data under Section 215. “This change accounts for a significant increase in the volume of business records requests,” Mueller wrote.

What was not explained at the time, Chesney notes, is that the FBI was using the Section 215 requests to obtain a broad array of records. For example, a top-secret FISC order disclosed last week by the Guardian showed that the FBI had used a single Section 215 request to direct Verizon to turn over “all call detail records or telephony metadata’’ of its customers for a three month period, literally millions of records.

NSA revelations only 'the tip of the iceberg,' says Dem lawmaker | The Hill

The federal surveillance programs revealed in media reports are just “the tip of the iceberg,” a House Democrat said Wednesday.

Rep. Loretta Sanchez (D-Calif.) said lawmakers learned “significantly more” about the spy programs at the National Security Agency (NSA) during a briefing on Tuesday with counterterrorism officials.

“What we learned in there,” Sanchez said, “is significantly more than what is out in the media today.”

Lawmakers are barred from revealing the classified information they receive in intelligence briefings, and Sanchez was careful not to specify what members might have learned about the NSA’s work.

“I can’t speak to what we learned in there, and I don’t know if there are other leaks, if there’s more information somewhere, if somebody else is going to step up, but I will tell you that I believe it’s the tip of the iceberg,” she said.

Sanchez’s remarks on C-SPAN’s “Washington Journal” came a day after House lawmakers were briefed by national security officials on clandestine data collection programs.

The briefing was meant to convince lawmakers that the surveillance programs are legal and necessary in fighting counterterrorism — an argument President Obama and other administration officials have made.

Lawmakers demanded the briefings after revelations last week about the NSA’s collection of phone records and Internet data, and Sanchez said lawmakers were “astounded” by what they heard.

“I think it’s just broader than most people even realize, and I think that’s, in one way, what astounded most of us, too,” Sanchez said of the briefing.

The applicable law is one of the most controversial provisions of the Patriot Act — Section 215. It allows the FISA court to authorize broad warrants for most any type of records, including those held by banks, doctors and phone companies. Lawmakers have repeatedly voted to prevent the act from expiring. The government only needs to show that the information pertains to an “authorized investigation.” No connection to a terrorist or spy is required. Spy Court Urged to Unmask Legal Basis for NSA Dragnet Phone Surveillance

Also Revealed by Verizon Leak: How the NSA and FBI Lie With Numbers | Kevin Poulsen

Here’s a seemingly comforting statistic: In all of 2012, the Obama administration went to the secretive Foreign Intelligence Surveillance Court only 200 times to ask for Americans’ “business records” under the USA Patriot Act.

Every year, the Justice Department gives Congress a tally of the classified wiretap orders sought and issued in terrorist and spy cases – it was 1,789 last year. At the same time, it reports the number of demands for “business records” in such cases, issued under Section 215 of the USA Patriot Act. And while the number of such orders has generally grown over the years, it has always managed to stay relatively low. In 2011, it was 205. There were 96 orders in 2010, and only 21 in 2009.

Thanks to the Guardian’s scoop, we now know definitively just how misleading these numbers are. You see, while the feds are required to disclose the number of orders they apply for and receive (almost always the same number, by the way), they aren’t required to say how many people are targeted in each order. So a single order issued to Verizon Business Solutions in April covered metadata for every phone call made by every customer. That’s from one order out of what will probably be about 200 reported in next year’s numbers.

The public numbers are the one bit of accountability around the surveillance court, and the Justice Department used them to misdirect the public away from a massive domestic NSA spying operation that, as several Senators approvingly noted today, has been running for seven years.

In 2011, Acting Assistant Attorney General Todd Hinnen relied on the same misleading numbers when he told the House Judiciary Committee that “on average, we seek and obtain section 215 orders less than 40 times per year.” Congressman James Sensenbrenner rightly took Hinnen to task today for juking the stats. “The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials,” Sensenbrenner writes (.pdf). “The recently released FISA order, however, could not have been drafted more broadly.”

Leaks reveal the truth in small slices. In 2006, a technician at an AT&T switching center in San Francisco followed some fiber optic splices straight into an NSA wiretapping program parked on the backbones of the internet. Now someone with access to a single Patriot Act order served on Verizon Business Solutions leaked it to the Guardian, so today’s news is that the FBI and the NSA are engaged in wholesale spying on Verizon customers. But the whole pie is certainly bigger than that.

There are hints of broader surveillance in the Verizon order. In addition to call records, the order demands cell phone data, like customers’ IMSI (International Mobile Subscriber Identity) number and another identifier that reveals the make and model of the phone. The mobile data is a non sequitur in that particular order, because Verizon Business Services isn’t a mobile carrier; it’s the long distance and landline business Verizon acquired as MCI in 2005.

The obvious conclusion is that the Foreign Intelligence Surveillance Court uses the same catchall boilerplate order over and over again, just changing the company name and the date. The court that’s supposed to be protecting Americans from abusive domestic surveillance is not only failing in that duty, it’s also lazy.

Thanks to that laziness, we can fairly surmise that the orders are routine, and they are served on other carriers. Probably all of them. And probably continuously, renewed every three months for the last seven years.

That means the Administration has a database of every call to suicide prevention, every tip to a government fraud whistleblowing hotline, every call to the “find a meeting” number for every Alcoholics Anonymous chapter. And all it told us was that it uses the USA Patriot Act every now and then.

Court Finds FBI-Issued National Security Letters ‘Significantly Infringe Upon Speech’ | Kevin Gosztola

Nondisclosure or gag provisions of National Security Letters “significantly infringe upon speech regarding controversial government powers,” a district court in California ruled on March 15. The provisions were found to violate the First Amendment and “separation of powers principles.”

National Security Letters (NSLs) are issued by the Federal Bureau of Investigation (FBI). They are issued to telecommunication companies, financial institutions, credit companies, etc, without court approval and, as the American Civil Liberties Union (ACLU) describes, make it possible for the FBI to compile “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”

The authority to do this was granted under the guise of protecting national security by Congress in the PATRIOT Act.

Even more totalitarian than what the FBI actually does with information it obtains without court approval is the fact that NSLs have had “gag” provisions that require recipients to be silent. The company being asked to provide records is supposed to not talk about NSL requests publicly. The person whose data is being mined by the FBI is supposed to be silent as well.

In a lawsuit brought by the Electronic Frontier Foundation (EFF) on behalf of an “unnamed telecommunications company,” a US district court in California ruled the gag provisions were unconstitutional. [++]

[T]he White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215 [of the PATRIOT Act]. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under the FISA Amendments Act, and part of it under Section 215. Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused | emptywheel

There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. Russ Feingold in 2001. The sole Senate dissent against the passage of the Patriot Act.


People who talk about how 9/11 supposedly “brought us together” as a nation, and wax nostalgic about how “united” we all were, are writing Muslim- and Arab-Americans out of history. Maybe I experienced a different 9/11 from these former people, but the prevailing type of “national unity” I remember was around the most militaristic, Islamophobic, and jingoistic sentiments. I, for one, am glad we are no longer living in the immediate political shadow of 9/11, with its concomitant fear-mongering, war-mongering, and hate-mongering. Indeed, I think we still have yet to shed all of these traits from the national polity.

Extremism normalized | Glenn Greenwald

Remember when, in the wake of the 9/11 attack, the Patriot Act was controversial, held up as the symbolic face of Bush/Cheney radicalism and widely lamented as a threat to core American liberties and restraints on federal surveillance and detention powers? Yet now, the Patriot Act is quietly renewed every four years by overwhelming majorities in both parties (despite substantial evidence of serious abuse), and almost nobody is bothered by it any longer. That’s how extremist powers become normalized: they just become such a fixture in our political culture that we are trained to take them for granted, to view the warped as normal. Here are several examples from the last couple of days illustrating that same dynamic; none seems overwhelmingly significant on its own, but that’s the point:

After Dick Cheney criticized John McCain this weekend for having chosen Sarah Palin as his running mate, this was McCain’s retort:

Look, I respect the vice president. He and I had strong disagreements as to whether we should torture people or not. I don’t think we should have.

Isn’t it amazing that the first sentence there (“I respect the vice president”) can precede the next one (“He and I had strong disagreements as to whether we should torture people or not”) without any notice or controversy? I realize insincere expressions of respect are rote ritualism among American political elites, but still, McCain’s statement amounts to this pronouncement: Dick Cheney authorized torture — he is a torturer — and I respect him. How can that be an acceptable sentiment to express? Of course, it’s even more notable that political officials whom everyone knows authorized torture are walking around free, respected and prosperous, completely shielded from all criminal accountability. “Torture” has been permanently transformed from an unspeakable taboo into a garden-variety political controversy, where it shall long remain. [more examples]

NSA Whistleblower: Justice Department Covers Up Crimes of Obama, Bush Administrations | The Dissenter

The annual report on 2011 from the Justice Department shows secret surveillance under FISA went up. The FISA court did not deny a request to eavesdrop or spy, according to the privacy group known as EPIC:

of DOJ requests to the FISA court to eavesdrop on and/or physically search Americans/legal residents: 1,745

of FISA court denials: 0

While national security letters (NSLs)—a secret subpoena that the government can use to force the disclosure of records, banking or credit information of citizens—decreased, Trevor Timm of the Electronic Frontier Foundation (EFF) points to a larger issue:

Perhaps most notably, the government’s use of Section 215 – the so-called “business records” provision of FISA – more than doubled in 2011. The DOJ filed 205 applications in 2011, up from 96 applications made in 2010. This is the same provision that Senators Wyden and Udall have warned us about: the Senators have said that when the American public finds out how the government has interpreted and is using the provision, the public will be “stunned” and “angry.” Given this, it is particularly concerning the government is relying on the provision much more frequently.

Yes, right now, the Executive Branch has secret interpretations of laws that are not being shared with members of Congress. Members of Congress could be more vocal about this issue, but, to protect their careers or status in government, they are silent and, if they challenge this conduct at all, they do it privately.

Finally, the secret surveillance — the ever-expanding surveillance state — is defended by the Obama administration in court. The American Civil Liberties Union (ACLU) is challenging the constitutionality of the FISA Amendments Act but the government has tried to block any judicial review of the surveillance law. They have opposed the ACLU as the Cyber Intelligence Sharing and Protection Act (CISPA) moves through Congress, granting NSA even more power to collect information on US citizens. And, they have opposed the ACLU as they push Congress to reauthorize the probably illegal FISA law of which Congress refuses to conduct proper oversight.

Don’t fret everyone: just assume that everything you do is being monitored either by giant corporations or the government and act accordingly. I usually start with a greeting.

Hi guys!