Under long-standing federal law, the government needs to use legal process to compel service providers to hand over customer communications, yet reportedly, the government is promising these companies they will not to prosecute them for violating US wiretapping laws if they hand over the information voluntarily. And the secret surveillance authorization seems quite broad, touching on huge swaths of private, domestic activity:
The secret legal authorization from the Justice Department originally applied to a cybersecurity pilot project in which the military monitored defense contractors’ Internet links. Since then, however, the program has been expanded by President Obama to cover all critical infrastructure sectors including energy, healthcare, and finance starting June 12.
CNET reported also that the National Security Agency (NSA) and Department of Defense were “deeply involved in press for the secret legal authorization” further underscoring widespread worries that the military may be given access to Americans’ personal information through cybersecurity operations. The report comes as Congress is debating CISPA, a dangerous bill that carves a “cybersecurity” loophole in all our privacy laws.
While we are still sifting through the more than thousand pages of documents—obtained by EPIC Privacy through the Freedom of Information Act and posted to their website—the most controversial aspect of this program seems to be that the government has not used legal process to obtain Internet traffic from AT&T and other ISPs involved in the program. Instead, the Justice Department has handed them what the Justice Department calls a “2511 letter”—named after a section of the Wiretap Act—which purports to immunize them from prosecution.
Section 2511 makes it a crime to wiretap—intercept electronic communications—with some exceptions, like a properly issued warranted. It provides no exception for a letter from the Justice Department. CNET reported an industry representative told them “the 2511 letters provided legal immunity to the providers by agreeing not to prosecute for criminal violations of the Wiretap Act. It’s not clear how many 2511 letters were issued by the Justice Department.”
Beyond what CNET reported, we still need to analyze these new documents to determine how pervasive this surveillance is and its impact on the American public. We are currently reading them over and will have a more detailed analysis soon.
Secretary of Defense Donald Rumsfeld shares a laugh with President George W. Bush and Vice President Dick Cheney during his farewell parade at the Pentagon. (Photo credit: Wikipedia)
Today, D. Inder Comar, a San Francisco lawyer who is seeking to do what the Obama Administration refuses to do, hold the Bush Administration accountable for the unnecessary invasion of Iraq and its ongoing, horrific, aftermath. Here’s what Comar has to say:
On March 13, 2013, I filed two lawsuits in the Northern District of California against George W. Bush, Richard Cheney, Colin Powell, Donald Rumsfeld, Condoleezza Rice and Paul Wolfowitz on behalf of an Iraqi client and on behalf of myself as a United States citizen.
My Iraqi client, Ms. Sundus Saleh, alleges that these defendants planned and waged a “war of aggression” in violation of laws set down at the Nuremberg Trials in 1946. She has exercised the jurisdiction of the court through the Alien Tort Statute, a law passed by the first Congress in 1789. She seeks to hold these defendants personally liable for their actions.
My case seeks to set new precedent regarding the obligations of government leaders. I am asking the court to acknowledge that I have a common law and/or constitutional right (premised in the First Amendment) to receive honest and candid information from government officials with respect to war and peace. I have also alleged that the defendants violated California’s false advertising law in planning and waging the Iraq War. I am handling these cases completely pro bono. I have litigated numerous cases in the federal courts, both as an associate for a major law firm and now on my own. I want to win these cases, both for my client and for myself.
But these lawsuits won’t go anywhere without the help of people like you. First, the more people who care, the more likely the courts will care. Take the Prop 8 litigation: that legal case has acted as a spearhead for a larger movement that is recognizing that the Constitution cannot discriminate based on sexual orientation. These lawsuits need similar support for the idea that leaders cannot deceive and mislead the public, particularly in matters of war and peace, and remain unaccountable. With the Supreme Court tightening access to the courts (even with the Alien Tort Statute in the very recent Kiobel decision), the courts need to know that people want to hold leaders accountable under law.
Second, my firm is a small San Francisco boutique that is primarily involved in corporate counseling and court appointed trial and appellate work. I will shamelessly admit that I cannot handle these cases alone! I need the support of passionate, intelligent and thoughtful people to secure the court orders that I want for myself and for my client.
As Americans, we are fortunate to have a functioning judiciary. Today, there are millions of people living in other countries who would be killed if they dared to question their leaders. In America, we are heirs to an 800 year tradition extending back to Magna Carta that says no one is above the law – not even the king. And George W. Bush was no king.
Please join me to make this trial a reality. You can help by supporting our fundraising campaign at indiegogo, by spreading the word about the lawsuits, and by reaching out to me (inder at comarlaw dot com) if you want to get involved.
Please help me hold our leaders accountable to prevent another Iraq War.
Yesterday, the US House prepared for the debate on the privacy-invading “cybersecurity” bill called CISPA, the Cyber Intelligence Sharing and Protection Act. The rules committee hearing was the last stop before the bill is voted on by the full House.
In the hearing, Rep. Mike Rogers (R-MI) was questioned about the core problems in the bill, like the broad immunity and new corporate spying powers. In response, he characterized users who oppose CISPA as “14 year olds” tweeting in a basement.
The bill may be voted on as early as Wednesday. This means there’s little time left to speak out. Please tell your Representative to vote no on the bill:
Rep. Rogers Dismisses CISPA Opponents as Teenage Basement Tweeters
After a heated exchange about the overly broad legal immunity, Rep. Jared Polis (D-CO) noted the widespread opposition to CISPA by Internet users. In response, Rep. Rogers characterized opponents to CISPA as “14 year olds” tweeting in a basement.
Of course, many people oppose CISPA — several thousand of whom tweeted at Rogers after his remark.
Internet companies like Mozilla, Reddit, NameCheap, Gandi.net, and other have also come out strong against the bill. And over 70 cybersecurity experts and academics sent a joint letter opposing CISPA last year, expressing their firm opposition to the dangers of Roger’s approach to computer security:
We have devoted our careers to building security technologies, and to protecting networks, computers, and critical infrastructure against attacks of many stripes. We take security very seriously, but we fervently believe that strong computer and network security does not require Internet users to sacrifice their privacy and civil liberties.
Earlier this week, 34 civil liberties groups sent a letter opposing CISPA in its current form.
And the newest addition to CISPA opposition? The White House, which issued a veto threat (PDF) yesterday.
Rep. Rogers Makes The Case For Why Representatives Should Vote No
Rep. Rogers is adamant that no sensitive personal information or email content will be collected under the bill and then sent to the federal government. Under questioning from Rep. Polis, Rogers said “Again, zeroes and ones, hundreds of millions of times a second, in patterns. It has nothing to do with content. Nothing.”
First of all, of course it’s zeros and ones. That’s how information is passed in the digital environment–whether it is content or not. If Rogers is going to propose fundamentally changing privacy on the Internet, he ought to know that the contents of email are transferred with zeros and ones in patterns.
Second, if Rogers really meant this, there is an easy solution. Exclude the content of communications from the bill. Viola! Companies would not be able to transfer the content of anyone’s email under the bill, whether in the form of zeros and ones, or by carrier pigeon.
Reducing Confidence in the Internet
Rep. Polis spoke candidly during the hearing about some of the detrimental effects CISPA could have on Internet users’ trust in online services:
This directly hurts the confidence of Internet users. Internet users – if this were to become law – would be much more hesitant to provide their personal information -even if assured under the terms of use that it will be kept personal because the company would be completely indemnified if they ‘voluntarily’ gave it to the United States government.
Rep. Rogers was not convinced, asserting this would not be a problem. He’s wrong. CISPA gives legal immunity to companies who share your information under the bill, with no exception for privacy policies or user agreements that promise to protect your privacy. Even worse, core privacy laws like the Privacy Act, Cable Communications Policy Act, the Wiretap Act, the Video Privacy Protection Act, and the Electronic Communications Privacy Act will be decimated by CISPA, robbed of their power to protect you when it comes to this so-called cybersecurity sharing.
One amendment that could have helped to address this concern was a proposal by Rep. Justin Amash (R-MI) which would have made clear that a company can still make a legally-enforceable commitment to users via a contract (such as terms of use) that it will not share personally identifiable information with the federal government.
Privacy Amendments Aren’t Allowed to Proceed For A Full House Vote
The hearing ended with the decision on which amendments would be allowed for consideration during the floor vote. In all, 42 amendments were submitted to CISPA – the majority of which dealt with privacy and civil liberties problems with the bill. Only 12 were allowed to go to the floor for a full vote.
Among the amendments that will not move forward are forward-thinking proposals by Reps. Adam Schiff (D-Calif.) and Jan Schakowsky (D-Ill.), both of whom suggested amendments that would address some of the core privacy concerns in CISPA. The first (PDF), championed by Rep. Schakowsky, would requires that the first point of sharing information with the federal government must be with a civilian agency, so that U.S. military or defense agencies won’t directly collect or receive cyber information on American citizens.
Another amendment (PDF) promoted by Rep Schiff, requires companies sharing information with the government or other private entities under the bill make “reasonable efforts” to remove personally identifiable information of individuals unrelated to the cyber threat.
At first the chairmen didn’t even allow a vote on whether or not these amendments could be presented to the full house for a vote. A vote on the amendments was held by the committee only after Democrats raised the issue.
Unfortunately, both amendments were ruled out of order – along with many others that would have addressed civil liberties issues. This means that fixing the bill through floor amendments –which was always unlikely–is now clearly impossible. EFF is urging Representatives to oppose the bill in the upcoming vote.
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