NSA update: Government fights transparency, House plans vote to codify domestic spying

Americans have been inundated with stories about the Obamacare meltdown, there has been some news about the NSA and domestic surveillance programs in the last few days, and none of it is good.

TechDirt reported on Tuesday that Justice Department is fighting a Foreign Intelligence Surveillance Court (FISC) order to release the government’s secret interpretation of the USA PATRIOT Act.

Section 215 of the 2001 anti-terrorism law has been used to justify domestic spying programs employed by the NSA, despite a clear limitation on whom the government can collect information. At some point since its passage, however, the government came up with its own interpretation that says something entirely different.

Rep. James Sensenbrenner (R-WI), who sponsored the law, contends that the NSA is defying congressional intent as the provision only allows intelligence agencies to seize records related to an actual investigation into terrorist activity.

“The phone records of innocent Americans do not relate to terrorism, whatsoever; and they are not reasonably likely to lead to information that relates to terrorism,” said Sensenbrenner in a speech last month at the Cato Institute. “Put simply, the phone calls we make to our friends, our families, and business associates are private and have nothing to do with terrorism or the government’s efforts to stop it.”

Sensenbrenner to introduce USA FREEDOM Act today

More than two weeks after outlining principles behind the USA FREEDOM Act in a speech at the Cato Institute, Rep. James Sensenbrenner (R-WI) will reportedly introduce the anti-domestic surveillance measure today with strong bipartisan support, according to Breitbart, a conservative news outlet.

Sensenbrenner, who sponsored the PATRIOT Act in 2001, has emerged as one of the primary critics of the NSA’s domestic surveillance programs and contends that the Justice Department and intelligence is relying on a broad interpretation of the anti-terrorism law, far beyond congressional intent, to collect Americans’ phone and Internet metadata.

The FREEDOM Act would limit the NSA’s ability to collect data “adopting a uniform standard for intelligence gathering under Section 215 of the PATRIOT Act,” according to Sensenbrenner.

What’s more, the measure would reform the Foreign Intelligence Surveillance Court (FISC) by creating a civil liberties advocate, create new reporting requirements and oversight from Congress for the court, and allow the Privacy and Civil Liberties Oversight Board subpoena authority. The legislation will also reform National Security Letters (NSL) to ensure that the current administration or its predecessors don’t use another agency to collect bulk data.

Heritage Foundation may be shifting on government surveillance

Heritage Foundation

The Heritage Foundation, considered to be one of Washington’s most influential think tanks, appears to have had a change of heart on government surveillance programs that it once supported.

Once a place where ignoring constitutionally protected civil liberties seemed to be a virtue, the conservative think tank, under the leadership of former Sen. Jim DeMint (R-SC), recently declined to publish two papers that supported the National Security Agency’s snooping, according to Foreign Policy:

Heritage refused to publish two papers about the National Security Agency’s surveillance programs written by a prominent conservative attorney. Why? Because he concluded that the programs were legal and constitutional, according to sources familiar with the matter. It was a surprising move for a think tank that has supported extension of the Patriot Act — which authorizes some of NSA’s activities — and has long been associated with right-of-center positions on national security and foreign policy.

NSA collecting 500,000 email addresses, chat-list contacts per day

government spying

There is yet another new wrinkle in the ongoing coverage of the NSA’s vast surveillance apparatus. The Washington Post reported on Monday that the intelligence agency is harvesting some 500,000 email and instant messaging chat-lists everyday, including information from Americans who are not subject of an investigation (emphasis added):

The National Security Agency is harvesting hundreds of millions of contact lists from personal e-mail and instant messaging accounts around the world, many of them belonging to Americans, according to senior intelligence officials and top-secret documents provided by former NSA contractor Edward Snowden.
Rather than targeting individual users, the NSA is gathering contact lists in large numbers that amount to a sizable fraction of the world’s e-mail and instant messaging accounts. Analysis of that data enables the agency to search for hidden connections and to map relationships within a much smaller universe of foreign intelligence targets.

During a single day last year, the NSA’s Special Source Operations branch collected 444,743 e-mail address books from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unspecified other providers, according to an internal NSA PowerPoint presentation. Those figures, described as a typical daily intake in the document, correspond to a rate of more than 250 million a year.

Obama Administration lied about terror plots foiled by bulk data collection

NSA Director Keith Alexander

Shortly after the National Security Agency’s broad surveillance of Americans became public knowledge, the Obama Administration and intelligence officials quickly sought to mitigate the damage by telling the public that the collection of phone records helped foil more than 50 terrorist plots.

But during a Senate Judiciary Committee hearing last week, NSA Director Gen. Keith Alexander admitted that the Obama Administration lied to the public about the number of terrorist attacks that had been prevented by the snooping (emphasis added):

During Wednesday’s hearing, Senate Judiciary Committee Chairman Patrick Leahy pushed Alexander to admit that plot numbers had been fudged in a revealing interchange:

“There is no evidence that [bulk] phone records collection helped to thwart dozens or even several terrorist plots,” said Leahy. The Vermont Democrat then asked the NSA chief to admit that only 13 out of a previously cited 54 cases of foiled plots were genuinely the fruits of the government’s vast dragnet surveillance systems:

“These weren’t all plots, and they weren’t all foiled,” Leahy said, asking Alexander, “Would you agree with that, yes or no?”

“Yes,” replied Alexander.

Senators roll out NSA surveillance reform measure

NSA reform press conference

Congress may be dealing with other legislative priorities at the moment, such as passing a stop-gap funding measure to keep the government open, but the National Security Agency’s broad surveillance apparatus remains a hot topic.

Seeking to roll back the intelligence agency’s ability to spy on Americans, a bipartisan group of senators have proposed a package of measures to reform the PATRIOT Act — the legislation through which the NSA has claimed such broad power — and restore the Fourth Amendment.

The Intelligence Oversight and Surveillance Reform Act, sponsored by Sen. Ron Wyden (D-OR), would end the NSA’s bulk collection of phone and Internet metadata and prevent warrantless collection of communications, according to a statement provided by his office. It would also provide for a “constitutional advocate” on the Foreign Intelligence Surveillance Court (FISC), an idea backed by President Barack Obama.

“The overbroad surveillance activities that have come to light over the last few months have shown how wide the gap between upholding the constitutional liberties of American citizens and protecting national security has become,” said Wyden in the statement.

NSA opponents to hold rally against spying in late October

StopWatching.Us rally

Opponents of the National Security Agency’s broad surveillance apparatus are organizing a rally to remind elected officials the violation of Americans’ civil liberties through the collection of their phone records and Internet metadata.

StopWatching.Us — a coalition of more 100 groups, including the ACLU, Competitive Enterprise Institute, Digital Fourth, Electronic Frontier Foundation, FreedomWorks, Mozilla, and reddit — plans to stage the rally on October 26th in Washington, DC, where organizers will present Congress with petitions containing the signatures of more than 569,000 people who are opposed to NSA spying.

“On Saturday, October 26 — the 12th anniversary of the signing of the USA PATRIOT Act — thousands of people from across the political spectrum will unite in Washington, D.C. to proclaim: Enough is enough. Stop watching us,” StopWatching.Us said in the announcement of the rally.

“We are demanding a full Congressional investigation of America’s surveillance programs, reform to federal surveillance law, and accountability from public officials responsible for hiding this surveillance from lawmakers and the public,” the organizers added. “And we will personally deliver the half million petition signatures to Congress.”

Legal challenge against NSA spying forms unlikely alliances

Though the story has lost traction in light of recent events in Syria, the American Civil Liberties Union’s legal challenge against the National Security Agency’s surveillance programs is gaining steam.

The ACLU announced on Wednesday that the National Rifle Association (NRA) and Rep. James Sensenbrenner (R-WI), who authored the law the government is using to collect phone and Internet metadata of innocent Americans, have filed amicus briefs in support of the legal challenge against the NSA:

An impressive array of organizations and individuals filed amicus briefs yesterday in support of the ACLU’s constitutional challenge to the government’s collection of the call records of virtually everyone in the United States. The range of voices joining the protest against mass government surveillance—not to mention the bipartisan storm that has swept Congress since the recent NSA disclosures — is a real testament to the fact that the government’s dragnet surveillance practices are offensive to Americans from across the political spectrum.

Congressional backlash against NSA growing after latest revelations

Justin Amash

The latest revelations concerning the National Security Agency (NSA) could potentially tip the balance in favor of a measure to prevent the intelligence agencies from broadly spying on Americans.

Last week, the Washington Post reported that the NSA had broken privacy rules 2,776 times over a 12-month period dating back to May 2012, pushing key lawmakers to call for increased congressional oversight of the surveillance programs.

Senate Judiciary Chairman Patrick Leahy (D-VT) announced plans for a hearing over the programs after the latest report, according to The Hill, and expressed concerns that Congress is “still not getting straight answers” from the administration and intelligence officials. And House Minority Leader Nancy Pelosi (D-CA) called the Washington Post’s report “extremely disturbing” and called for more congressional oversight.

But the most interesting comments about the latest revelations came from Rep. Justin Amash (R-MI), who proposed an amendment last month that would have limited the NSA’s spying programs. The amendment, which was defeated by a very slim margin, would have denied funding to execute any FISA court order that isn’t specific to a person who is the subject of an actual investigation.

White House denies controversial intelligence director will lead NSA review

James Clapper

The White House denied yesterday that Director of National Intelligence James Clapper, who is under fire for lying to Congress about the existence of NSA spying program, would lead or direct the group responsible for reviewing the surveillance techniques being used to gather information on innocent Americans:

The Obama administration is denying that James Clapper, the director of national intelligence, will control a review of the government’s surveillance programs.

Privacy advocates expressed dismay on Monday after President Obama directed Clapper to establish a group that will provide recommendations for reforming the controversial surveillance programs.
“Director Clapper will not be a part of the group, and is not leading or directing the group’s efforts,” Caitlin Hayden, a White House spokeswoman, told The Hill on Tuesday.

“The White House is selecting the members of the Review Group, consulting appropriately with the Intelligence Community,” she said, adding that the administration expects to announce the members of the group soon.

Shawn Turner, a spokesman for the director of national intelligence, also said that the group will “not be under the direction of or led by” Clapper.

President Barack Obama spoke at length on Friday about the NSA controversy and discussed a few steps his administration would be taking to easy concerns Americans about the spying programs he authorized.

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