It’s time to tie your tinfoil hat under your chin and close the door of your Faraday cage as we once again try to keep up with the snoops.
The biggest news this week is the defeat of the USA Freedom Act in the Senate. 58 senators voted for the measure, with 42 against. It needed 60 to pass. The vote went mostly along party lines, with Democrats in favor and Republicans opposed.
The bill would have curtailed many of the National Security Agency’s (NSA) mass surveillance powers. Although weaker than the original bill proposed by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI) last year, it was stronger than the House of Representatives’ version, and the Electronic Frontier Foundation still endorsed the legislation.
The prime argument against the USA Freedom Act was, of course, terrorism and the threat of ISIS (or ISIL, IS, Mouse Rat, or whatever it’s called this week). “This is the worst possible time to be tying our hands behind our backs,” said Senator Mitch McConnell (R-KY), who will soon be Senate majority leader. Senator Leahy accused the GOP of fear mongering. “Fomenting fear stifles serious debate and constructive solutions,” he said. “This nation deserves more than that.”
The argument that the NSA requires broad domestic surveillance powers to track ISIS is questionable, since ISIS has rendered most of those methods ineffective. One of Edward Snowden’s arguments against mass electronic surveillance has been that U.S. intelligence has become over-reliant on it, causing it to miss things like the Boston Marathon bombings. And electronic mass surveillance looks to become even more ineffective now that many governments are considering going back to typewriters.
A surprising opponent of the USA Freedom Act was presidential hopeful Rand Paul (R-KY). Senator Paul, who inherited a libertarian streak from his father, former congressman and presidential candidate Ron Paul (R-TX), has been a vocal opponent of NSA mass surveillance. Paul’s reason for voting against the bill was that it renewed three provisions of the 2001 USA Patriot Act. However, most of the Patriot Act’s 100-plus provisions do not require renewal at all, and those three would likely be renewed at a later date anyway.
Speaking of the Senate, you may recall from earlier installments of Keeping Up with the Snoops that the Senate and the CIA have been battling over the public release of the CIA’s internal report on its use of torture (see “Keeping Up with the Snoops 6: A Game of Chairs,” 6 August 2014). That fight led to revelations of the CIA hacking into Senate computers, along with a number of delays in the release of the report.
Unfortunately, that report still hasn’t been released to the public, though Senate Intelligence Chairwoman Dianne Feinstein (D-CA) said negotiations to release the report are almost over. But that’s been said before. The report may soon get out anyway, as outgoing Senator Mark Udall (D-CO) is considering reading it into the public record on the Senate floor.
It hasn’t been a great year for CIA public relations. It was recently revealed that the CIA and FBI hired 1,000 Nazi war criminals, protecting them from prosecution as late as the 1990s.
While much of the focus on surveillance has centered on the NSA and CIA, it’s important to realize that this is an issue that affects all law enforcement. It was recently revealed that the U.S. Marshals Service (USMS) plants fake cell phone towers, called “dirtboxes,” in small aircraft to spy on criminals.
While the USMS does get court orders, these dirtboxes (more powerful versions of ground-based Stingray phone trackers) scoop up cellular data indiscriminately. The USMS says that it discards unwanted data, but the potential pitfalls worry some legal experts. From the above Ars Technica article:
Former US magistrate judge and current law professor at Indiana Tech Brian Owsley expressed a similar concern: “Regarding using planes as cell towers, that is problematic in my opinion. It strikes me as analogous to the use of Stingrays. Therefore, I think the government would need to obtain a search warrant based on probable cause consistent with the Fourth Amendment,” Owsley wrote to Ars in an e-mail.
It should also be noted that Google landed in hot water a few years ago, when its Street View vehicles were found to store more information than Google claimed that they were gathering.
The surveillance trickle-down effect doesn’t end at the federal level, either. Prosecutors in Baltimore recently withdrew evidence when asked how the police obtained it. From The Baltimore Sun:
City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a “nondisclosure agreement” with the FBI.
“You don’t have a nondisclosure agreement with the court,” Baltimore Circuit Judge Barry G. Williams replied. Williams threatened to hold Haley in contempt if he did not respond. Prosecutors decided to withdraw the evidence instead.
But not all judges hold the same views as Judge Williams. More than 1,500 pages of court documents have been released from Yahoo’s once-secret fight with the U.S. government in the Foreign Intelligence Surveillance Court (FISC). Yahoo was one of the earliest opponents of the government’s secret PRISM surveillance program. The company eventually lost, and was threatened with a fine of $250,000 per day for noncompliance.
On 13 November 2014, the FISC also unsealed the oral argument transcript from that case. Some of the judges’ arguments are interesting, especially these excerpts from Morris S. “Buzz” Arnold, who left the court in 2013:
JUSTICE ARNOLD: Well, if this order is enforced and it’s secret, how can you be hurt? The people don’t know that — that they’re being monitored in some way. How can you be harmed by it? I mean what’s — what’s the — what’s your — what’s the damage to your consumer?
In other words, what you don’t know can’t hurt you. Justice Arnold also had a bewildering comment on the Fourth Amendment:
JUSTICE ARNOLD: The whole thrust of the development of Fourth Amendment law has sort of emphasized the watchdog function of the judiciary. If you just look at the Fourth Amendment, there’s nothing in it that really says that a warrant is usually required. It doesn’t say that at all, and the warrant clause is at the bottom end of the Fourth Amendment, and — but that’s the way — that’s the way it has been interpreted.
That sentence not only seems to contradict itself and the text of the Fourth Amendment (below), but over 200 years of case law.
AMENDMENT IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The negative effects of secret surveillance aren’t limited to government. Ride-sharing service Uber is in hot water over comments made by executive Emil Michael about digging up dirt on critical journalists — in particular Sarah Lacy of PandoDaily. Combine that with an investigation into revelations that Uber employees have used a special “God View” to track journalists and Uber’s good will in the tech community might be at an end.
But there may be no way to regain privacy. While Americans say they’re worried about privacy, they’re still giving up personal information to digital services willy-nilly. And that’s the source of the problem. If so many of us didn’t willingly share private information over the Internet, it wouldn’t be so attainable by governments and corporations (not to mention organized crime). Just as we accepted pollution and other societal ills as a result of the Industrial Revolution, perhaps the loss of privacy is the Faustian pact we’ve agreed to in the Internet era.
Finally, if you have an intense interest in this topic, you may wish to check out documentarian Laura Poitras’s new film, Citizenfour, which focuses on whistleblower Edward Snowden and the NSA surveillance controversy (Poitras was one of Snowden’s original contacts). I haven’t had a chance to see it yet (it’s not in wide release), but it has a solid 97 percent rating on Rotten Tomatoes. I wish I could rent it at Amazon or iTunes, but perhaps that’s missing the point.
And as for those who say Snowden should have taken proper channels instead of leaking information (he claims he did, though the NSA disputes that), it turns out that tactic had already been tried. An unnamed former top NSA official has come forward, saying that there was internal dissent about these programs that was quelled by then-NSA Director Keith Alexander and the Obama administration.