The American Bear

› 57 Civil Liberties, Press Freedom and Public Interest Groups Demand Answers on Targeting of Journalists | Free Press

On Friday, Free Press and 57 civil liberties, digital rights, press freedom and public interest groups sent a letter to Attorney General Eric Holder demanding a full, transparent account of the Justice Department’s targeting of journalists and whistleblowers.

Representing millions of Americans, the groups include the American Civil Liberties Union, the American Library Association, the Communications Workers of America, the Electronic Frontier Foundation, the Society of Professional Journalists, the Sunlight Foundation and the Writers Guild of America East. (The full list of signers can be found below.) In addition, Free Press delivered more than 16,000 petition signatures urging the Justice Department to protect press freedom.

› Antiwar.com Sues FBI After Secret Surveillance | Kelley B. Vlahos

Antiwar.com is taking the FBI to court.

The website’s founder and managing editor Eric Garris, along with longtime editorial director Justin Raimondo, filed a lawsuit in federal court today, demanding the release of records they believe the FBI is keeping on them and the 17-year-old online magazine.

Antiwar.com says this is one more example of post-9/11 government overreach, and a stark reminder that the First Amendment has been treated as little more than a speed bump on the road to a government surveillance state. The lawsuit is particularly timely, considering recent scandals in which the Department of Justice secretly seized months of journalists’ phone records at the Associated Press, and did the same and more to a FOX News reporter, while the IRS is acknowledging it singled out conservative groups that criticize the government for extra scrutiny.

Suddenly, the press is more aware than ever that the state has the ability to secretly monitor its activities, heretofore thought of as constitutionally protected from government interference and intimidation.

“Freedom of the press is a cornerstone of our democracy, whether it’s AP or Antiwar.com,” said Julia Harumi Mass, staff attorney for the American Civil Liberties Union of Northern California, which is representing Antiwar.com in the case. “FBI surveillance of news organizations interferes with journalists’ ability to do their jobs as watchdogs that hold the government accountable.”

The suit was filed on Tuesday at the United States District Court, Northern District of California, San Francisco Division. Both Garris and Raimondo live and work in the San Francisco Bay area.

According to the suit, the ACLU has made several futile attempts to obtain the FBI files since a reader alerted Garris and Raimondo to this lengthy FBI memo in 2011. The details in question begin at page 62 of the heavily redacted 94-page document. It’s clear from these documents, the suit alleges, that the FBI has files on Garris and Raimondo, and at one point the FBI agent writing the April 30, 2004 memo on Antiwar.com recommends further monitoring of the website in the form of opening a “preliminary investigation …to determine if [redaction] are engaging in, or have engaged in, activities which constitute a threat to national security.”

“On one hand it seemed almost funny that we would be considered a threat to national security, but it’s very scary, because what we are engaging in is free speech, and free speech by ordinary citizens and journalists is now being considered a threat to national security and they don’t have to prove it because the government has the ability to suppress information and not disclose any of their activities – as witnessed with what is going on now at the AP and other things,” said Garris.

“The government’s attitude is they want to know all, but they want the public to know as little as possible.” [continue]

› AG Holder, FBI and U.S. Attorneys' offices can't agree on a warrant requirement for email surveillance | Privacy SOS

When considering the implications of the massive digital Panopticon being developed today, it is important to reflect upon the impact upon individual liberty which even crude, old-fashioned surveillance causes. With the revelation that the New York Police Department had been conducting blanket-spying on Muslims living in New York City and its environs - using methods such as paid informants, wiretapping, detailed cataloguing of Muslim neighbourhoods, documentation of Muslim-owned businesses, infiltration of houses of worship, and many other invasive tactics, it can be observed what effects intensive monitoring can have on ordinary individuals.

Throughout six years of spying on entire communities for no other reason than their religion, not a single lead or terrorism investigation was generated by the programme. Nonetheless, the damage done to the psyches of individuals who knew their community was deeply infiltrated was palpable. Communities and personal relationships were torn apart by government-induced suspicion and paranoia, as people became too afraid to speak or even associate with one another.

… Given what relatively crude means of surveillance can do to a community, what long-term effect will a pervasive, technologically-advanced, multi-billion dollar national spying programme have on the fabric of society? One means of combatting seditious and unwanted speech is to simply make ordinary people too afraid to speak and commiserate with each other whatsoever, and the surveillance state being built today may ultimately accomplish this goal.

Murtaza Hussain, An increasingly unchecked surveillance state

“Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.”

› ACLU lawsuit takes on FBI surveillance of news organizations including Antiwar.com | War in Context

› DOJ Releases Completely Blacked-Out Memo on Surveillance of Text Messages

The Justice Department has released 15 pages of completely blacked-out material in response to a request for information about how text messages from cellphones are intercepted. The American Civil Liberties Union says the Obama administration is reading emails and other electronic communications without a warrant, despite a court ruling against the practice. In response to a recent Freedom of Information Act request on the issue, the Justice Department released a memo with black rectangles covering every bit of text except the title, sender and recipient. ACLU spokesperson Josh Bell told ABC News: “We got very little information about the policy on text messages. [The document] does not even show the date, let alone what the policy is.”

Paperclipped to the last page of the redacted document was a sheet of white paper, blank, except for the phrase, perfectly centered both vertically and horizontally, “Go Fuck Yourself” in 12 pt. brush script.

[As] Harvard Law Professor Yochai Benkler noted recently in the New Republic, when the judge presiding over Manning’s prosecution asked military lawyers if they would ‘have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?,’ the prosecutor answered simply: ‘Yes, ma’am’. It has long been clear that this WikiLeaks-as-criminals theory could and would be used to criminalize establishment media outlets which reported on that which the US government wanted concealed. Now we know that the DOJ is doing exactly that: applying this theory to criminalize the acts of journalists who report on what the US government does in secret, even though there is no law that makes such reporting illegal and the First Amendment protects such conduct. Essentially accusing James Rosen of being an unindicted co-conspriator in these alleged crimes is a major escalation of the Obama DOJ’s already dangerous attacks on press freedom. … It is virtually impossible at this point to overstate the threat posed by the Obama DOJ to press freedoms.

Obama DOJ formally accuses journalist in leak case of committing crimes | Glenn Greenwald

… Back in 2006, Bush Attorney General Alberto Gonzales triggered a major controversy when he said that the New York Times could be prosecuted for having revealed the Top Secret information that the NSA was eavesdropping on the communications of Americans without warrants. That was at the same time that right-wing demagogues such Bill Bennett were calling for the prosecution of the NYT reporters who reported on the NSA program, as well as the Washington Post’s Dana Priest for having exposed the CIA black site network.

But despite those public threats, the Bush DOJ never went so far as to formally accuse journalists in court filings of committing crimes for reporting on classified information. Now the Obama DOJ has.

… If even the most protected journalists - those who work for the largest media outlets - are being targeted in this way, and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

There is simply no defense for this behavior. Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary “trade-off” between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks.

Greenwald is writing in response to this report from The Washington Post.

› A rare peek into a Justice Department leak probe | The Washington Post

Another serious overreach and attack on press freedom from Obama and his DoJ:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

At a time when President Obama’s administration is under renewed scrutiny for an unprecedented number of leak investigations, the Kim case provides a rare glimpse into the inner workings of one such probe.

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

And here’s a first (and incredibly dangerous precedent) - accusing Rosen of committing a crime (co-conspirator) for basic reporting:

[…] Court documents show abundant evidence gathered from Kim’s office computer and phone records, but investigators said they needed to go a step further to build their case, seizing two days’ worth of Rosen’s personal e-mails — and all of his e-mail exchanges with Kim.

Privacy protections limit searching or seizing a reporter’s work, but not when there is evidence that the journalist broke the law against unauthorized leaks. A federal judge signed off on the search warrant — agreeing that there was probable cause that Rosen was a co-conspirator.

Machen’s office said in a statement that it is limited in commenting on an open case, but that the government “exhausted all reasonable non-media alternatives for collecting the evidence” before seeking a search warrant.

However, it remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so.

› Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

› Govt obtains wide AP phone records in probe

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

In a letter of protest sent to Attorney General Eric Holder on Monday, AP President and Chief Executive Officer Gary Pruitt said the government sought and obtained information far beyond anything that could be justified by any specific investigation. He demanded the return of the phone records and destruction of all copies.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations and disclose information about AP’s activities and operations that the government has no conceivable right to know,” Pruitt said.

The government would not say why it sought the records. Officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have provided information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

In testimony in February, CIA Director John Brennan noted that the FBI had questioned him about whether he was AP’s source, which he denied. He called the release of the information to the media about the terror plot an “unauthorized and dangerous disclosure of classified information.”

Prosecutors have sought phone records from reporters before, but the seizure of records from such a wide array of AP offices, including general AP switchboards numbers and an office-wide shared fax line, is unusual.

In the letter notifying the AP, which was received Friday, the Justice Department offered no explanation for the seizure, according to Pruitt’s letter and attorneys for the AP. The records were presumably obtained from phone companies earlier this year although the government letter did not explain that. None of the information provided by the government to the AP suggested the actual phone conversations were monitored.

Among those whose phone numbers were obtained were five reporters and an editor who were involved in the May 7, 2012, story.

Jesus.

› FBI's Latest Proposal for a Wiretap-Ready Internet Should Be Trashed | Julian Sanchez

“The FBI’s plan would effectively make an entire category of emerging secure platforms — such as the encrypted voice app Silent Circle or the Dropbox-like cloud storage service Spider Oak — illegal overnight.”

The FBI has some strange ideas about how to “update” federal surveillance laws: They’re calling for legislation to penalize online services that provide users with too much security.

I’m not kidding. The proposal was revealed in The Washington Post last week — and a couple days ago, a front-page story in The New York Times reported the Obama administration is preparing to back it.

Why? Federal law enforcement agencies like the FBI have long feared their wiretap capabilities would begin “going dark” as criminals and terrorists — along with ordinary citizens — shift from telephone networks, which are required to be wiretap-ready under the 1994 Communications Assistance for Law Enforcement Act (CALEA), to the dizzying array of online communications platforms available today.

While it’s not yet clear how dire the going-dark scenario really is, the statutory “cure” proposed by the FBI — with fines starting at $25,000 a day for companies that aren’t wiretap capable — would surely be worse than the disease.

The FBI’s misguided proposal would impose costly burdens on thousands of companies (and threaten to entirely kill those whose business model centers on providing highly secure encrypted communications), while making cloud solutions less attractive to businesses and users. It would aid totalitarian governments eager to spy on their citizens while distorting business decisions about software design. Perhaps worst of all, it would treat millions of law-abiding users with legitimate security needs as presumed criminals — while doing little to hamper actual criminals.