Posts Tagged ‘National Security Letters’

“The evil was not in bread and circuses, per se, but in the willingness of the people to sell their rights as free men for full bellies and the excitement of the games which would serve to distract them from the other human hungers which bread and circuses can never appease.” — Admiral Ben Moreell (1892 – 1978), chief of the U.S. Navy’s Bureau of Yards and Docks and of the Civil Engineer Corps

As the grandfather of three young ones, ages 5 to 9, I get to see my fair share of kid movies: plenty of hijinks, lots of bathroom humor, and an endless stream of slapstick gags. Yet even among the worst of the lot, there’s something to be learned, some message being conveyed, or some aspect of our reality being reflected in celluloid.

So it was that I found myself sitting through The Angry Birds Movie on a recent Sunday afternoon, doling out popcorn, candy and drinks and trying to make sense of a 90-minute movie based on a cell phone video game that has beendownloaded more than 3 billion times.

The storyline is simple enough: an island nation of well-meaning, feel-good, flightless birds gets seduced by a charismatic green pig and his cohort who comes bearing food, wine and entertainment spectacles (the Roman equivalent of bread circuses). Ignoring the warnings of one solitary, suspicious “angry” bird that the pigs are up to no good, the clueless birds eventually discover that the pigs have stolen their most precious possessions: their eggs, the future of their entire society. It takes the “angry bird” to motivate the normally unflappable Bird Nation to get outraged enough to do something about the violation of their trust by the pigs and the theft of their personal property.

While one would be hard-pressed to call The Angry Birds Movie overly insightful, it is, as The Atlantic concludes, a “feather-light metaphor for our times… The film functions, effectively, as a fairy tale: It uses its status as fantasy to impart lessons about reality.”

It turns out that we’re no different from the wine-guzzling, food-noshing, party-loving Bird Nation. We too are easily fooled by charismatic politicians bearing gifts. And we too are easily distracted as those same politicians and their cohorts rob us blind.

Case in point: while Barack Obama winds down his presidency with a flurry of celebrity-studded events that is causing the media to hail him as the “coolest” president, and the presidential candidates continue to distract us with spectacular feats of chest-thumping, browbeating and demagoguery, the police state continues its steady march onward.

All of the revelations of government wrongdoing, spying and corruption disclosed by NSA whistleblower Edward Snowdenseem to have fallen on deaf ears.

Nothing has improved or changed for the better.

There has been no real reform, no significant attempts at greater transparency, no accountability, no scaling back of the government’s warrantless, illegal domestic surveillance programs, and no recognition by Congress or the courts that the Fourth Amendment provides citizens with any protection against unreasonable searches and seizures by government agents.

In fact, as I point out in my book Battlefield America: The War on the American People, we’ve been subject to even more obfuscation, even more lies, even more sleight-of-hand maneuvers by government agencies determined to keep doing what they’re doing without any restrictions on their nefarious activities, and even more attempts by government agencies to listen in our phone calls, read our emails and text messages, monitor our movements, and generally imprison us within an electronic concentration camp.

Writing for the New Yorker, investigative reporter Maria Bustillos concludes, “the machinery of our government seems to have taken on an irrational life of its own. We live in a surreal world in which a ‘transparent’ government insists on the need for secret courts; our President prosecutes whistle-blowers and maintains a secret ‘kill list’; and private information is collected in secret and stored indefinitely by intelligence agencies.”

It’s no coincidence that almost exactly three years after Snowden began his steady campaign to leak documents about the government’s illegal surveillance program, Congress is preparing to adopt legislation containing a secret provision that would expand the FBI’s powers to secretly read Americans’ emails without a court order.

Yes, you read that correctly.

The government is planning to push through secret legislation that would magnify its ability to secretly spy on us without a warrant.

After three years of lying to us about the real nature of the government’s spying program, feigning ignorance, dissembling, and playing at enacting real reforms, it turns out that what the government really wants is more power, more control and more surveillance.

A secret provision tacked onto the 2017 Intelligence Authorization Act will actually make it easier for the government to spy on Americans’ emails as well as their phone calls.

If enacted, this law would build upon the Patriot Act’s authorization of National Security Letters (NSL) which allows the FBI to secretly demand—without prior approval from a judge and under a gag order that carries the penalty of a prison sentence—that banks, phone companies, and other businesses provide them with customer information and not disclose the demands to the person being investigated or even indicate that they have been subjected to an NSL.

As Reuters reports, federal agencies do not need a warrant to access emails or other digital communications more than 180 days old due to a provision in a 1986 law that considers them abandoned by the owner. However, legislative efforts to require government authorities to obtain a search warrant before accessing old emails have been turned on their head by the insertion of this secret provision giving the FBI carte blanche access to Americans’ emails.

As if the FBI didn’t have enough corrupt tools in its bag of tricks already.

NSLs—in existence since the 1970s—empower FBI operatives to delve into Americans’ most personal affairs based only on the say-so of an agency that has come to be known as America’s Gestapo, or secret police. Incredibly, all the FBI needs to assert in order to justify such a search is that the information sought is relevant to a national-security investigation.

Nicholas Merrill can tell you all about NSLs. The head of a web-hosting company, he challenged the FBI’s unwarranted request for information on one of his customers and its companion gag order. Only after the FBI withdrew its request and a subsequent court-ordered lifting of the gag order was Merrill able to share his experiences. As Merrill recounts:

It was not a warrant. It was not stamped or signed by a court or a judge. It was this letter demanding this information from me. And it also told me that I could never tell anyone that I had gotten the letter. It said that I could tell ‘no person.’ The amount of information that the government can get with one of these letters can paint an incredibly vivid picture of all aspects of a person’s life — from the professional, to the personal, to the political, to their religious beliefs, to invading the privacy of their marriage, to being able to figure out what their sexual preference is. The amount of information that comes out of a national security letter is just so invasive. The fact that the government has been treating it so casually, and essentially going out on mass fishing expeditions and gathering the data of potentially millions of Americans without any suspicion of wrongdoing is very upsetting to me as someone who was raised on ideas about American exceptionalism and the belief that our system of government — with its built-in checks and balances and safeguards against abuse — were what made our country different from other countries.

Clandestine requests. Broad powers. Minimal insight. Intimidation tactics.

That’s how the FBI’s use of NSLs are described, but it can easily be applied to the government-at-large and its voracious quest for ever-greater powers without any real accountability to the citizenry or any adherence to the rule of law.

It’s estimated that the FBI issues approximately 40,000 to 60,000 such NSLs per year and that number is growing.

In 2008, the Justice Department’s inspector general revealed that the FBI had been abusing its NSL authority by making improper requests, collecting more data than they were allowed to, not having proper authorization to proceed with a case, and attempting to sidestep the Foreign Intelligence Surveillance Court, the secret court charged with overseeing the government’s secret surveillance program. In one case, after having its search request denied by the FISA Court on the basis that “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights,” the FBI used its NSL power to carry out its surveillance.

Even after being called on the carpet for abusing its information-gathering powers, the FBI continued to flout the very laws put in place to keep government abuses in check.

Incredibly, Barack Obama criticized President Bush for his administration’s mass government surveillance programsonly to fully embrace them once he himself had attained the White House. Indeed, the Obama administration has been lobbying for years to expand the FBI’s use of NSLs to include emails.

Now, here we are, eight years later, and we’re still being treated like the gullible birds in The Angry Birds Movie, easily pacified with bread, easily distracted by circuses, and easily robbed of our most precious possessions—our freedoms, our privacy and our right to have a government that abides by the rule of law and answers to us.

There are many ways of reacting to this latest news about the government’s treachery.

You can subscribe to the simplistic, head-in-the-sand routine and do as one of my so-called Facebook “friends” suggests and just obey the law, hoping that it will keep you out of the government’s clutches, but that’s no guarantee of safe passage. Of course, that will mean knowing the law—federal, state and local—in all of its convoluted, massive, growing permutations, understanding that overcriminalization has resulted in the average person unknowingly committing three crimes a day. As author Harvey Silvergate points out, even the most honest and informed citizen “cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.” For instance, you could be charged criminally for receiving an odd package, taking a fake sick day, reporting on government wrongdoing based on an anonymous source, or creating a website for a religious charity.

You can insist that such concessions to security are making us safer, even though facts suggest otherwise.Barring a few notable exceptions, the politicians are singing the same tune: security at any cost. The NSL provision sailed past the 15-member Senate Intelligence Committee with only Sen. Ron Wyden (D-Ore.) dissenting. In a joint statement that underscores the ease with which the Republicans and Democrats work together in order to sell us out, Chairman Richard Burr (R-NC) and Vice Chairman Dianne Feinstein (D-Calif.) declared the expanded powers necessary to “keep America safe” and “vital” in order to “provide intelligence agencies with all the resources they need to prevent attacks both at home and abroad.”

This whole line of reasoning, as Nicholas Merrill explains, is hogwash. As he points out, the terrorist attacks in Paris were carried out by individuals “communicating without the use of any type of security or encryption. They were speaking in Facebook groups and using regular text messaging on their phones, without taking any steps to cover their tracks or make it harder to listen in on what they were doing. To me this proves that the whole dragnet surveillance system that we’ve built is actually useless, because it didn’t help us at all to prevent that type of attack.”

In other words, government spying isn’t making us safer, but it is making us less free. “In the end we’ve lost part of our freedom that maybe we’ll never get back. We’ve lost some part of what makes our system great, but in the end we’ve not really gained the security we thought we would get in the tradeoff for the freedom that we’ve given up.”

You can cast your ballot for one of the many slogan-spouting politicians who are long on lies and short on loyalty to their constituents. At the end of the day, these people work for the government and their primary purpose is to remain in office, living the kind of rarefied, pampered, privileged life that the average American only gets to dream about. Every one of the members of the Senate Intelligence Committee who voted for this legislation is a traitor to their oath of office and should be booted off that committee. What’s more, any member of Congress who votes for this legislation should be sent packing back to where they came from. As Brewster Kahle, another recipient of an NSL who successfully challenged the government’s gag order, reminds us, “The government is not one monolithic thing. It’s a bunch of people, thinking they’re doing their jobs.” It’s our job to make them toe the line when their thinking goes awry.

Or you can stop drinking the happy juice, stop believing the politicians’ lies, stop being so gallingly gullible and out to lunch, and start getting angry. In our politically correct, feel-good, play nice culture, anger has gotten a bad rap, but there’s something to be said for righteous anger acted upon in a nonviolent, effective fashion. It’s what Martin Luther King Jr. referred to as “military nonviolent resistance.” It means caring enough to get off your caboose, get on your feet and get actively involved in holding government officials accountable to the simple fact that they work for “we the people.”

It’s not an easy undertaking.

The government has been playing fast and loose with the rules for too long now, and its greed for power and riches is boundless.

Still we are not powerless, although the government’s powers grow daily. We have not yet been altogether muzzled, although the acts of censorship increase daily. And we have not yet lost all hope for restoring our republic, although the outlook appears bleaker by the day.

For the moment, we still have some small allotment of freedoms by which we can express our displeasure, push back against injustice and corruption, and resist tyranny. One Texas man, outraged at being fined $212 for driving 39 in a 30 mph zone, chose to pay his fine with 22,000 pennies. It was a small act of disdain in the face of a government machine that tolerates little resistance, but it was acts such as these that sowed the early seeds of resistance that birthed this nation.

As revolutionary patriot Samuel Adams observed, “It does not take a majority to prevail… but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men.”

 

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WASHINGTON, D.C. — Citing a fundamental right to privacy, travel and association, The Rutherford Institute has asked the U.S. Supreme Court to prohibit police from gaining unfettered access to motel and hotel guest registries.

In an amicus curiae brief filed in City of Los Angeles v. Patel, et al., Rutherford Institute attorneys are asking the Court to declare unconstitutional a Los Angeles ordinance that allows police to inspect private hotel and motel records containing information about the persons who are staying there without a warrant or other judicial review. The Institute’s brief argues that the ordinance, which is similar to laws on the books in cities across the nation, flies in the face of historical protections affording hotel guests privacy in regards to their identities and comings-and-goings and burdens the fundamental rights of travel and association, which the Court has long safeguarded from arbitrary government scrutiny.

A Government of Wolves book cover“This practice of giving police officers unfettered, warrantless access to Americans’ hotel records is no different from the government’s use of National Security Letters to force banks, phone companies, casinos and other businesses to secretly provide the FBI with customer information such as telephone records, subscriber information, credit reports, employment information, and email records and not disclose the demands,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning A Government of Wolves: The Emerging American Police State. “Both ploys are merely different facets of the government’s campaign to circumvent, by hook or by crook, the clear procedural safeguards of the Fourth Amendment and force business owners to act as extensions of the police state.”

Section 41.49 of the City of Los Angeles Municipal Code requires all hotel owners to maintain a registry that collects information about persons staying at the hotel, including their names, addresses, vehicle information, arrival and departure dates, room prices, and payment methods. Under this law, it is a crime for a guest to provide false or misleading information in registering at the hotel.

The law also requires that hotels make these records available to any officer of the Los Angeles Police Department for inspection on demand, thereby allowing law enforcement officers to inspect this information at any time regardless of whether there is consent to the inspection or a warrant allowing it. Additionally, police need not have any measure of suspicion in order to review hotel registries under the ordinance and there need not be any history of criminal activity at the hotel. A hotel operator is guilty of a crime if he or she refuses to allow inspection.

In 2005, the Los Angeles Lodging Association and various owners and operators of hotels and motels in the city filed a lawsuit challenging the requirement of the ordinance that they grant unfettered access to their guest registries, arguing that the ordinance is a patent violation of the Fourth Amendment’s protection of persons’ houses, papers and effects against “unreasonable searches and seizures.”

In December 2013, the U.S. Court of Appeals for the Ninth Circuit upheld the hotel owners’ claims, ruling that the inspection of hotel registries by police is clearly a search for purposes of the Fourth Amendment. The Ninth Circuit also rejected the claim that hotels are a “closely regulated” industry that should expect government inspections, thereby holding that police are not excused from the general search warrant requirement.

In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that police should not be given carte blanche to rummage through records containing highly personal information because this could chill the exercise of other constitutional rights, such as the right to travel and the right of association.

Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

“If you’re not a terrorist, if you’re not a threat, prove it. This is the price you pay to live in free society right now. It’s just the way it is.”—Sergeant Ed Mullins of the New York Police Department

Immediately following the devastating 9/11 attacks, which destroyed the illusion of invulnerability which had defined American society since the end of the Cold War, many Americans willingly ceded their rights and liberties to government officials who promised them that the feeling of absolute safety could be restored.

In the 12 years since, we have been subjected to a series of deceptions, subterfuges and scare tactics by the government, all largely aimed at amassing more power for the federal agencies and extending their control over the populace. Starting with the wars in Afghanistan and Iraq, continuing with the torture of detainees at Abu Ghraib and Guantanamo Bay, and coming to a head with the assassination of American citizens abroad, the importing of drones and other weapons of compliance, and the rise in domestic surveillance, we have witnessed the onslaught of a full-blown crisis in government.

Still Americans have gone along with these assaults on their freedoms unquestioningly.

Even with our freedoms in shambles, our country in debt, our so-called “justice” system weighted in favor of corporations and the police state, our government officials dancing to the tune of corporate oligarchs, and a growing intolerance on the part of the government for anyone who challenges the status quo, Americans have yet to say “enough is enough.”

Now, in the wake of the Boston Marathon bombing, we are once again being assured that if we only give up a few more liberties and what little remains of our privacy, we will achieve that elusive sense of security we’ve yet to attain. This is the same song and dance that comes after every tragedy, and it’s that same song and dance which has left us buying into the illusion that we are a free, safe society.

The reality of life in America tells a different tale, however. For example, in a May 2013 interview with CNN, former FBI counterterrorism agent Tim Clemente disclosed that the federal government is keeping track of all digital communications that occur within the United States, whether or not those communicating are American citizens, and whether or not they have a warrant to do so.

As revelatory as the disclosure was, it caused barely a ripple of dismay among Americans, easily distracted by the torrent of what passes for entertainment news today. Yet it confirms what has become increasingly apparent in the years after 9/11: the federal government is literally tracking any and all communications occurring within the United States, without concern for the legal limitations of such activity, and without informing the American people that they are doing so.

Clemente dropped his bombshell during a CNN interview about authorities’ attempts to determine the nature of communications between deceased Boston bombing suspect Tamerlan Tsarnaev and his widow Katherine Russell. In the course of that conversation, Clemente revealed that federal officials will not only be able to access any voicemails that may have been left by either party, but that the entirety of the phone conversations they had will be at federal agents’ finger tips.

“We certainly have ways in national security investigations to find out exactly what was said in that conversation,” stated Clemente. “All of that stuff [meaning phone conversations occurring in America] is being captured as we speak whether we know it or like it or not.” A few days later, Clemente was asked to clarify his comments, at which point he said, “There is a way to look at all digital communications in the past. No digital communication is secure.”

In other words, there is no form of digital communication that the government cannot and does not monitor—phone calls, emails, text messages, tweets, Facebook posts, internet video chats, etc., are all accessible, trackable and downloadable by federal agents.

At one time, such actions by the government would not only have been viewed as unacceptable, they would also have been considered illegal. However, government officials have been engaged in an ongoing attempt to legitimize these actions by passing laws that make the lives of all Americans an open book for government agents. For example, while the nation was caught up in the drama of the Boston bombing and the ensuing military-style occupation of the city by local and federal police, Congress passed a little-noticed piece of legislation known as the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation, which the House of Representatives approved by an overwhelming margin of 288-127, will allow internet companies to share their users’ private data with the federal government and other private companies in order to combat so-called “cyber threats.”

In short, the law dismantles any notion of privacy on the internet, opening every action one undertakes online, whether emailing, shopping, banking, or just browsing, to scrutiny by government agents. While CISPA has yet to clear the U.S. Senate Committee on Commerce, Science, and Transportation, the spirit of it is alive and well. In fact, officials in the Obama administration have for some time now been authorizing corporate information sharing and spying in secret through the use of executive orders and other tactics.

The Justice Department, for instance, has been issuing so-called “2511 letters” to various internet service providers like AT&T, which immunize them from being prosecuted under federal wiretapping laws for providing the federal government with private information. Despite federal court rulings to the contrary, the Department of Justice continues to assert that it does not require a warrant to access Americans’ emails, Facebook chats, and other forms of digital communication.

NSA Surveillance Octopus

While it may be tempting to lay the full blame for these erosions of our privacy on the Obama administration, they are simply continuing a system of mass surveillance, the seeds of which were planted in the weeks after 9/11, when the National Security Agency (NSA) began illegally tracking the communications of American citizens. According to a Washington Post article published in 2010, the NSA continues to collect 1.7 billion communications, whether telephone, email or otherwise, every single day.

The NSA and Department of Justice are just two pieces of a vast surveillance network which encompasses and implicates most of the federal government, as well as the majority of technology and telecommunications companies in the United States. For the past two years, the United States Foreign Intelligence Surveillance Court has approved literally every single request by the federal government to spy on people within the United States. There have been some 4,000 applications rubberstamped by the court in the past two years, applications which allow federal officials to monitor the communications of any person in the United States, including American citizens, if they are believed to be in contact with someone overseas.

These government-initiated spying programs depend in large part on the willingness of corporations to hand over personal information about their customers to government officials. Sometimes the government purchases the information outright. At other times, the government issues National Security Letters, which allow the government to force companies to hand over personal information without a warrant or probable cause.

Some web companies, such as Skype, have already altered their products to allow government access to personal information. In fact, government agents can now determine the credit card information and addresses of Skype users under suspicion of criminal activity. Aside from allowing government agents backdoor access to American communications, corporations are also working on technologies to allow government agents even easier access to Americans’ communications.

For example, Google has filed a patent for a “Policy Violation Checker,” software which would monitor an individual’s communications as they type them out, whether in an email, an Excel spreadsheet or some other digital document, then alert the individual, and potentially their employer or a government agent, if they type any “problematic phrases” which “present policy violations, have legal implications, or are otherwise troublesome to a company, business, or individual.” The software would work by comparing the text being typed to a pre-defined database of “problematic phrases,” which would presumably be defined on a company-by-company basis.

The emergence of this technology fits in well with Google chairman Eric Schmidt’s view on privacy, which is that “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Unfortunately, this is not just the attitude of corporate benefactors who stand to profit from creating spy technology and software but government officials as well.

Additionally, police officials throughout the country have become increasingly keen on monitoring social media websites in real time. Rob D’Ovido, a criminal justice professor at Drexel University, has noted that, “The danger of this in light of the tragedy in Boston is that law enforcement is being so risk-averse they are in danger of crossing that line and going after what courts would ultimately deem as free speech.”

Cameron Dambrosio

For example, Cameron Dambrosio, a teenager and self-styled rap artist living in Metheun, Massachusetts, posted a video of one of his original songs on the internet which included references to the White House and the Boston bombing. While the song’s lyrics may well have been crude and ill-advised in the wake of the Boston bombing, police officers exacerbated the situation by arresting Dambrosio and charging him with communicating terrorist threats, a felony charge which could land him in prison for twenty years.

Unfortunately, cases like Dambrosio’s may soon become the norm, as the FBI’s Next Generation Cyber Initiative has announced that its “top legislative priority” this year is to get social media giants like Facebook and Google to comply with requests for access to real-time updates of social media websites. The proposed method of encouraging compliance is legal inquiries and hefty fines leveled at these companies. The Obama administration is expected to support the proposal.

The reality is this:  we no longer live in a free society. Having traded our freedoms for a phantom promise of security, we now find ourselves imprisoned in a virtual cage of cameras, wiretaps and watchful government eyes. All the while, the world around us is no safer than when we started on this journey more than a decade ago. Indeed, it well may be that we are living in a far more dangerous world, not so much because the terrorist threat is any greater but because the government itself has become the greater threat to our freedoms. — John W. Whitehead