White House proposal would ease FBI access to records of Internet activity 29JUL10

MORE bullshit from the government as they continue the assault on the constitution and our civil rights! FIGHT BACK, JOIN THE ACLU AND FIGHT FOR YOUR RIGHTS! Click the header to go to the ACLU website to join.
By Ellen Nakashima
Washington Post Staff Writer
Thursday, July 29, 2010; A01


The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
Many Internet service providers have resisted the government's demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that "most" Internet or e-mail providers do turn over such data.
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
Privacy concerns
The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information "not permitted by the [surveillance] statute."
One issue with both the proposal and the current law is that the phrase "electronic communication transactional records" is not defined anywhere in statute. "Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded," said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration's warrantless surveillance program.
He said he does not object to the government obtaining access to electronic records, provided it has a judge's approval.
Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. "The statute as written causes confusion and the potential for unnecessary litigation," Justice Department spokesman Dean Boyd said. "This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993."
The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.
Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.
But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.
Same as phone records?
The officials said the transactional information at issue, which does not include Internet search queries, is the functional equivalent of telephone toll billing records, which the FBI can obtain without court authorization. Learning the e-mail addresses to which an Internet user sends messages, they said, is no different than obtaining a list of numbers called by a telephone user.
Obtaining such records with an NSL, as opposed to a court order, "allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient," the senior administration official said.
But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "It's much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters," he said. "It shows associational information protected by the First Amendment and is much less public than things like where you live."
A Nov. 5, 2008, opinion from the Justice Department's Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were "exhaustive."
This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. "The OLC opinion removed the ambiguity," he said. "Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk."
Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government's move could open a significant amount of Internet activity to government surveillance without judicial authorization. "A Facebook friend request -- is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren't getting that now."

ACLU ONLINE E MAIL NEWSLETTER 26FEB10

Click the header to go to the ACLU website and find out more about these issues or to participate in actions on specific issues.

Congress Reauthorizes Overbroad Patriot Act Provisions with No Privacy or Civil Liberties Safeguards

Yesterday, the House passed a one-year extension of three expiring Patriot Act provisions without making much-needed changes to the overly broad surveillance bill.

With this extension, Congress failed to address proper privacy safeguards in the Patriot Act, including:

* Amending the national security letter (NSL) statute to ensure that the government obtains financial, communication and credit records only of people believed to be terrorists or spies;
* Requiring the government to convince a court that a national security gag order is necessary;
* Terminating the "lone wolf" authority that permits the government to spy on people who are not part of a terrorist organization; and
* Ensuring that the so-called "library records provision" does not authorize collection of library and bookstore records if they contain information on a patron unless he is a terrorist or spy.

Since the Patriot Act's passage in 2001, there have been several consecutive reports — including one released in January — from the Department of Justice Office of the Inspector General that have outlined widespread and blatant abuse of the statute. FBI agents routinely claimed false terrorism emergencies to use "exigent letters," or emergency letters, in order to gain private records for investigations when no emergency existed. The FBI also regularly issued NSLs after the fact in an attempt to legitimize the use of exigent letters.

"Though the debate over reauthorizing the Patriot Act may be over this year, Congress still has the power to narrow the use of NSL powers and help avoid such abuses in the future," said Michelle Richardson, ACLU Legislative Counsel. "It's time to rein in the overbroad power of the NSL and bring the statute back in line with the Constitution."

Although the outcome is not what we had hoped, we made progress. In the House, 97 representatives, 10 of which were Republicans, voted against extending the Patriot Act. Some members of Congress justified this extension by promising that the next year would provide time for real reform. You can bet we're going to hold them to their promise. And we'll be turning to you to help keep the pressure on.

>> Learn more about the Patriot Act and the ACLU's work to reform it.


New National Security Distraction: Arabic Language Students

Nick George

Flying with a Foreign Language

College student Nick George was handcuffed, interrogated and jailed for hours at the airport when he tried to bring English-Arabic flash cards on the plane to study on his flight back to school. Now, he is an ACLU plaintiff.

Watch a short video to learn more about his case.



Recently, the ACLU filed a lawsuit on behalf of Nick George, a Pomona College student who was detained and aggressively interrogated by Transportation Security Administration (TSA) authorities, by the FBI and by Pennsylvania police when he tried to board a plane carrying Arabic language flash cards.

George, a physics major who's studying Arabic, was pulled aside for secondary screening at the Philadelphia International Airport as he tried to go through security. When he emptied his pockets, the inspector saw his flash cards — which had words such as "to smile" and "funny" on them. He was then arrested, handcuffed, locked in a cell for hours and aggressively questioned.

During George's ordeal, no fewer than seven law enforcement officers took part in detaining and questioning him. The unnecessary arrest, detention and questioning of someone who poses no threat to flight safety makes everyone less safe by diverting resources away from real threats.

"Nick George was handcuffed, locked in a cell for hours and questioned about 9/11 simply because he has chosen to study Arabic, a language that is spoken by hundreds of millions of people around the world," said Ben Wizner, staff attorney with the ACLU National Security Project. "This sort of harassment of innocent travelers is a waste of time and a violation of the Constitution."

The lawsuit charges that the TSA officials, the Philadelphia police and the FBI violated George's Fourth Amendment right to be free from unreasonable seizure and his First Amendment right to free speech.

>> Learn more about Nick George's case.


ACLU's Adam Wolf Named California Attorney of the year!

We are thrilled that California Lawyer magazine named ACLU attorney Adam Wolf Attorney of the Year! Wolf is being recognized for his historic work representing ACLU client Savana Redding, who at age 13 was strip-searched by school authorities looking for ibuprofen. Adam's win before the US Supreme Court set new limits on school searches and is the biggest victory for students' rights in 40 years.

Congratulations, Adam!


We Agree with Ashcroft

We can now count former Attorney General John Ashcroft, one of the ACLU's frequent adversaries, among our allies on the issue of using our regular civilian courts to handle terrorism prosecutions.

Speaking at the Conservative Political Action Conference in Washington, D.C., Ashcroft was asked about trying terrorism cases in civilian courts, and responded that such a venue "has use and utility."

President Obama declared that he intended to try suspected terrorists in the American criminal court system - a system that has successfully prosecuted over 300 terrorism-related cases, unlike the flawed military tribunals that have only convicted three.

But some members of Congress, the media and local politicians are putting pressure on the Obama administration to try suspected terrorists in the discredited military commissions system in Guantánamo.

We were pleased when Attorney General Eric Holder announced in November that the trials of the accused 9/11 planners would be held in a federal court. But the pressure to reverse that decision is enormous. That's why freedom-loving people must raise their voices right now.

>> Take action: Tell President Obama that you support federal court trials for the accused 9/11 planners.


Tell Google: No Deal with the NSA

Google and the NSA. It is hard to imagine a more potent—or frightening—combination when it comes to the collection and safety of Americans' private information.

Such an alliance is underway, however. As reported by the Washington Post, Google — the world's largest search engine company with access to intimate details of our lives — is negotiating an information security agreement with the National Security Agency (NSA) — the world's largest spying network.

The implications of this deal are very troubling. The NSA — a component of the Department of Defense — is an intelligence collection agency with few effective checks against abuse and no public oversight of its activities. In the last decade, the NSA's vast dragnet of suspicionless surveillance has targeted everyday Americans, in violation of the law and the Constitution.

The deal would reportedly allow the NSA to assist Google in securing its data from attack after some its accounts, including those of human rights activists, were accessed by hackers. Google has an obligation to protect its subscribers' personal accounts, but it can — and must — do this without turning to a military surveillance agency for help.

Google needs to know that you do not want this deal to go through. Send a message to CEO Eric Schmidt that Google shouldn't be exposing its security vulnerabilities to a military spy organization like the NSA.

>> Take action: Tell Google CEO Eric Schmidt that you don't want the NSA anywhere close to your personal information.


The Justification of Bush Torture Program? New Report Reveals the Details

A report released last week by the Department of Justice's (DOJ) Office of Professional Responsibility (OPR) reveals new details about the development of the Bush administration's torture program.

The report considers the work of three DOJ attorneys — Steven Bradbury, John Yoo and Jay Bybee — who authorized the torture and abusive interrogation of detainees in U.S. custody through legal memoranda the three authored while at DOJ's Office of Legal Counsel (OLC) during the Bush administration.

It concludes that John Yoo and Jay Bybee exercised "poor judgement" when they wrote the legal authorizations for the use of abusive interrogation techniques on detainees in U.S. custody overseas.

As you may recall, Yoo and Bybee are now well-known for their role in enabling the atrocities that went on in black sites and at Guantánamo, including waterboarding, extreme sleep deprivation, stress positions and in some cases, death — acts that violated domestic and international law, alienated America's allies and yielded information that was both unreliable and unusable in court.

The OLC is tasked with providing the executive branch legal advice and gave senior Bush administration officials the false legal framework to knowingly authorize torture.

The ACLU is calling on the Justice Department to expand its criminal investigation of the torture program.

>> Take action: Tell the Attorney General to expand the criminal investigation.

>> Learn more about the Bush administration's torture program.

ANOTHER DAMNING REPORT ON THE FBI'S ABUSE OF POWER ACLU ONLINE 29JAN10

Another Damning Report on the FBI’s Abuse of Power
The Department of Justice’s Office of the Inspector General (OIG) released another damning report last week on the FBI’s use of National Security Letters (NSLs).

NSLs allow the FBI to secretly demand sensitive customer information from telephone and internet communications companies, financial institutions and credit agencies—without suspicion or prior judicial approval. The statute was broadly rewritten in the Patriot Act. Anyone who receives an NSL is "gagged," so they can't tell anyone they received one. This violation of the First Amendment enshrined into the Patriot Act has made NSLs the FBI's go-to surveillance tool since 9/11. And they've been abusing this tool repeatedly.

The OIG report released last week is the third report of abuse in the last four years that details the bureau’s flagrant and institutionalized abuse of NSLs. The FBI assures us they have this under control.

For years, Congress has stood by while report after report has been released. The bureau clearly cannot be trusted to police itself, so it’s time to stand up to the FBI's pick-and-choose approach to the rules. Congress must fulfill its oversight role and ensure that this power is reined in.

Congress will soon be voting on reauthorizing three provisions of the Patriot Act, including the NSL provisions. It is time to tell them to rein in the government’s authority to dig through our sensitive information.

>>Take action: Tell your members of Congress to reform the Patriot Act.
http://action.aclu.org/site/R?i=ZvcKWEu2xdcKvetCp1ldxA..