By Alex Marthews, National Chair

bd143df9-9492-44b3-be53-016aaf9b757d

In every country that has adopted mass surveillance, it has been abused for domestic political ends. It was so in (of course) the Soviet Union. It was so in East Germany. It was true in the US under Hoover and Nixon. Yet amid all of the scorn and hullabaloo about Trump’s tweets accusing President Obama of surveilling his campaign, and Nunes’ public confirmation of “incidental” collection, no-one’s asking the important question: What, in reality, prevents political surveillance from happening here?

The level I answer, from most journalists, is: Well, we’re America, and we have mechanisms that would prevent it from happening. We have a FISA court, and if you’re going to surveil an American, you need to go to that court, and get their approval. There’s no record of a request to the FISC to surveil Trump, and therefore Trump wasn’t surveilled.

This is goldfish journalism.

Let’s stipulate, safely, that Trump doesn’t have much expertise in how any of the government’s complex, semi-secret and overlapping surveillance authorities are supposed to work. In all likelihood, he was casually repeating something he saw on Fox, and wasn’t expecting it to be the huge controversy it’s now blown up into. He’s not a specialist in this stuff. He doesn’t, I suspect, really care to understand more. Nunes, in the interests of defending Trump, is now saying Trump’s organization was incidentally surveilled, and is expressing concern about incidental collection that he hasn’t expressed before; Schiff, the Democratic ranking member of the House Intelligence Committee, has protested that insofar as there was incidental collection, it was entirely legal. Yes, it is legal. That’s kind of the problem.

So journalists should know better than to come up with absurdities like “There was no surveillance because there was no paper trail at the FISA court”, or, worse, “There was no surveillance because former DNI James Clapper says there wasn’t.” Oh really? What, the same Clapper who is a byword for lies after perjuring himself under oath in testimony to Congress, in which, specifically, he denied surveillance of Americans that in fact existed? That James Clapper? In a just world, nobody sane would use Clapper as a trusted source for anything but the menu in the prison cafeteria.

On the paper trail, it was barely 15 years ago that President Bush set up the “President’s Surveillance Program”, which was specifically designed to evade the FISA court and warrantlessly surveil Americans – and much of that program was not stopped, but was simply legalized in 2008.

Journalists who trust such statements and write them up uncritically and without context, need their heads examined.

The level II analysis on this stuff, which I’ve seen from a few sources, is: OK, Trump was inaccurate to use the term “wiretap”, but there are broader surveillance programs, like those operating under Section 702 of the FISA Amendments Act (PRISM and UPSTREAM) that could certainly have intercepted his private communications and the communications of those in his circle. Such surveillance wouldn’t have been ordered by President Obama as a matter of targeting Trump specifically, but would have been an incidental effect of those larger programs which he did approve and renew. Now Nunes, by referring to “incidental collection under the Foreign Intelligence Surveillance Act”, appears to have confirmed this “level II” kind of surveillance. The fact that it is possible for such communications to be swept up is a serious problem that requires more of a reaction from Democrats than, “But this was legal”, and from NSA than “trust us, we’ll minimize that stuff out.”

But even beyond this, there’s a further level of analysis worth conducting. Back in 2006, Russell Tice, a senior NSA employee, blew the whistle on the NSA conducting specific surveillance on presidential candidates. Not only on them, but on members of the FISA court, the House and Senate Intelligence Committees, and Justice Antonin Scalia. True, both NSA and the O’Reilly Factor did their best to discredit his testimony at the time; but it boggles the mind that we can have a discussion about whether political surveillance is happening without even citing to what Tice said. We have no way of knowing whether the programs Tice revealed continue today. There’s no evidence that President Obama shut them down, or even knew about them, and NSA would have no incentive to let President Trump know about them either. So, you know, maybe the US is different. Maybe our NSA folks are just much more virtuous than people working for other countries’ surveillance agencies. Or we could be just like every other country that has done mass surveillance. Which seems more likely to you?

Which brings us to the final part of this analysis.

Having a President running his mouth about surveillance based on gossip and rumor is a bad thing. We can all agree on that. But in conversations with NSA sympathizers since the election, some of them are reacting in a disturbing way, as follows: That Trump should “not be allowed” to change existing alliances – that NSA has the right to withhold information from the President’s Daily Brief that they’re worried will be shared with Russia; in short, that in the absence of meaningful political opposition to Trump from Congress, the intelligence community should step in and be the saviors of the Republic.

nsa_susan#Resist!

Sorry, I mean, #AreYouGoddamnSerious? The NSA and CIA are going to save us?

If the intelligence community wants to give the impression that they’re far too professional to conduct political surveillance, they’re going the wrong way about it. After all these years, they still won’t even tell us how many Americans they’re spying on through “incidental” collection, and now if they act to discredit Trump using data from mass surveillance, what the hell kind of precedent will that set?

I want a president who will tangle effectively with the intelligence community and rein it in. Nothing about Trump suggests that he is that president. But both Democrats and Republicans who love this country should be able to tell the three-letter agencies, in words of four letters if need be, that it’s not their job to save us. It’s our job to save ourselves, from the much overhyped threat of terrorism, from incompetent elected officials, and from the agencies themselves.

by Ed Quiggle, Jr.

imgres-2

January 30th marks the birthday of Fred Korematsu, an American of Japanese ancestry who was indefinitely detained by the US government during World War II, and who challenged his detention in a case that went all the way to the Supreme Court. Several states including California, Virginia, Hawaii, and Florida have declared every January 30th to be Fred Korematsu Day of Civil Liberties and the Constitution, and other states such as Pennsylvania, Utah, Georgia, Illinois, South Carolina, and Michigan have celebrated the holiday in recent years as well. Mr. Korematsu died in 2005, and this January 30th would have marked his 98th birthday.

On February 19th, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which authorized the Secretary of War to establish internment camps where people of Japanese ancestry, German ancestry, and Italian ancestry, including American citizens, would be held until the end of the war. On May 3rd, 1942, General John L. DeWitt, commander of the Western Defense Area, ordered Japanese Americans to report to Assembly Centers by May 9th, 1942. Fred Korematsu refused to comply with this unconstitutional order, and attempted to evade capture and internment, even getting plastic surgery to try and make him appear caucasian. Mr. Korematsu was eventually arrested on a street corner in San Leandro, California on May 30th, 1942, and was held at a San Francisco jail.

While the ACLU was initially unsure of challenging the internment of Americans, fearing their organization would be perceived badly during wartime, they eventually decided to use Mr. Korematsu’s  case to test the constitutionality of Executive Order 9066. Fred Korematsu said that, “people should have a fair trial and a chance to defend their loyalty at court in a democratic way, because in this situation, people were placed in imprisonment without any fair trial.” On September 8th, 1942 Korematsu was convicted by a federal court for violating a law which made it a crime to violate military orders issued under Executive Order 9066, and was sentenced to 5 years probation. He was then transferred to the Tanforan Assembly Center, and subsequently sent to the Central Utah War Relocation Center. Mr. Korematsu was placed in a horse stall with a single lightbulb, conditions which Korematsu remarked were worse than jail.

Korematsu’s appealed his case, and eventually the Supreme Court decided to review the case on March 27th, 1944. On December 18th, 1944, the Supreme Court, in a 6-3 decision, ruled that while the internment was constitutionally suspect, it was justified under the wartime circumstances. The court’s decision in Korematsu v. United States has gone down as one of the worst Supreme Court decisions in history. In 1976, President Gerald Ford signed a proclamation formally terminating Executive Order 9066, and apologizing for the internment.

In 1980, President Jimmy Carter appointed a special commission to investigate the internment program, and concluded that the internment occurred because of “race prejudice, war hysteria, and a failure of political leadership.” In 1983, Judge Marilyn Hall Patel of U.S. District Court in San Francisco formally vacated Mr. Korematsu’s conviction. In 1988, President Ronald Reagan signed the Civil Liberties Act of 1988, which provided financial redress of $20,000 to each surviving detainee. President Bill Clinton awarded Fred Korematsu the Presidential Medal of Freedom in 1998. After the attacks of September 11th, 2001, Mr. Korematsu spoke out against allowing similar indefinite detention to happen to people of middle eastern descent. He also submitted two amicus curiae briefs in a Supreme Court case involving people detained at Guantanamo Bay.

The story of Fred Korematsu is one which Americans must not forget. Korematsu’s story is especially relevant this year with President Trump issuing his own Executive Order which has caused American residents and members of the US armed forces to be detained at airports, and refused entry back into the United States. The unconstitutional power to seize Americans without probable cause and without a warrant is one which the President still has to this day, thanks to the National Defense Authorization Act of 2012. We urge you to celebrate Korematsu Day and to join us in helping to Restore the Fourth!

Restore the Fourth is looking for a new Board Treasurer and Fundraising Chair, to be based anywhere in the US. Please see below for position descriptions and, if interested, email a resume and a cover letter explaining why you’d be a good fit for either position, to rt4chair@protonmail.com.

Treasurer

Restore The Fourth is a volunteer-run 501(c)(4) nonprofit opposing unconstitutional mass government surveillance. We have 16 chapters in the US and one in the UK. You can find out more about our work atwww.restorethe4th.com.

We are looking for a new Board Treasurer, to be based anywhere in the US. Board meetings occur monthly by conference call, with a biennial gathering at the HOPE conference in New York City, NY. In this position, you will be expected to present quarterly reports on finances to the Board, exercise oversight over our accounts, and participate fully in Board strategic discussions and decision-making.

These are the requirements for the position:

– Strong financial literacy, as evidenced by prior volunteer or professional experience dealing with P&Ls, earnings statements, and audits.

– Willingness to learn about the issue of unconstitutional mass government surveillance and work for an end to it;

– Availability some evenings between 8pm and 10pm US East Coast time.

These skills would be preferred in our applicants:

– Experience with nonprofit finances; 501c4 experience a strong plus.

– Passion for the cause of opposing unconstitutional mass government surveillance.

– We strongly welcome applications from women, people of color, and religious and sexual minorities. We are a consciously transpartisan organization, with people at all levels of a broad range of political beliefs.

Fundraising Chair

Restore The Fourth is a volunteer-run 501(c)(4) nonprofit opposing unconstitutional mass government surveillance. We have 16 chapters in the US and one in the UK. You can find out more about our work at www.restorethe4th.com.

We are looking for a new Board Fundraising Chair, to be based anywhere in the US. Board meetings occur monthly by conference call, with a biennial gathering at the HOPE conference in New York City, NY. In this position, you will be expected to oversee fundraising planning, set goals, and participate fully in Board strategic discussions and decision-making.

These are the requirements for the position:

– Prior volunteer or professional fundraising experience.

– Willingness to learn about the issue of unconstitutional mass government surveillance and work for an end to it;

– Availability some evenings between 8pm and 10pm US East Coast time.

These skills would be preferred in our applicants:

– Experience with membership organization fundraising and cultivating major donors.

– Passion for the cause of opposing unconstitutional mass government surveillance.

– We strongly welcome applications from women, people of color, and religious and sexual minorities. We are a consciously transpartisan organization, with people at all levels of a broad range of political beliefs.

We’re delighted to welcome Restore The Fourth’s latest new chapter, RT4-Pittsburgh, convened this month by Sean Donahue. This brings us to three new chapters formed just since Election Day, for a total of 17. If you’d like to help form a chapter and push back against the surveillance state in your area, please email us; or to join an existing chapter, check out the chapter map and contact your local chapter leader!

By Danielle Kerem

Restore the Fourth has once again filed an amicus brief that challenges the plurality opinion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) and seeks to promote an understanding of the Fourth Amendment that imposes limits on the exertion of U.S. authority against citizens and non-citizens alike — including children like Sergio Hernandez, a 15-year-old citizen of Mexico who was shot and killed by U.S. border patrol agent Jesus Mesa in the summer of 2010.

This past week, attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief on behalf of our organization to the Supreme Court of the United States. The case, Hernandez v. Mesa, asks the Court to decide whether the use of deadly force against Sergio Hernandez, by a U.S. border patrol agent who deliberately fired at the unarmed teenager from American soil, constituted a violation of Hernandez’s Fourth and Fifth Amendment rights. In our brief, we argue that the Fourth Amendment does indeed govern federal officers’ use of excessive force in cross-border shootings, as well as outline the historical and jurisprudential origins of that claim.

Amicus brief: http://restorethe4th.com/wp-content/uploads/2016/12/Hernandez-Mesa-Amicus-Brief.pdf

By Alex Marthews

Image credit: Redbubble.com

Image credit: Redbubble.com

Part of the vision of the Founders was a republic so peaceful and so brimming with liberty that, in the words of the prophet Micah, “Every man shall sit under his vine and under his fig tree; and none shall make them afraid.”

What we want as a movement is not simply an end to mass surveillance, but the revival of the ability to live free, creative, loving and flourishing lives. The best way to crush creativity and destroy happiness at work is to track every worker’s every activity, every moment of every day. A nation is no different. We all need space; we need free air to breathe; we need the knowledge that our government knows its bounds, and will not trespass into our lives without reason.

Instead, under President Obama, we see peaceful water protectors shot with rubber bullets and water cannons; protesters against police abuse spied on using stingrays and spy planes; and all of our communications sucked into the NSA’s rapacious maw. Under President Trump, we can expect more of the same.

At this point, everyone should realize that there’s a process at work here that the President doesn’t really control — a corrupt, out-of-control DC-based deep state that has no problem sacrificing your privacy and mine in the name of counter-terrorism, efficiency, and profits, while committing crimes of their own without comeback or consequences.

But it’s also important to realize that in our towns, cities, counties and states, we can meaningfully rally back against what they’re trying to do. Across America, we’re organizing to pass surveillance oversight ordinances that can protect your town from surveillance technologies being deployed without your knowledge or consent. We’re using the courts to argue for restoring the Fourth Amendment. Our growing network of chapters is helping Americans everywhere use tools like Tor, Signal and Protonmail to protect themselves better.

You can help us today, by getting involved or by donating now to support our work.

One day, as Micah says, there shall be none that shall make us afraid. But there’s a little work to be done before we get there. Join us, and help Restore The Fourth.

trump

The night of November 8 brought a storm to Washington, not of hope but of alienation and resentment. Trump’s improbable win has handed authoritarian Republicans the keys to all three branches of government.

In North Carolina, surveillance state apologist Richard Burr beat out ACLU chief Deborah Ross; in Wisconsin, Russ Feingold, the sole and honorable vote in the Senate against the PATRIOT Act in 2001, lost out to incumbent Ron Johnson. During the campaign, Trump enthused about the NSA, and called for Snowden’s execution. For those concerned about the surveillance state, there is little indeed to smile about this morning.

In this somber dawn, there are nevertheless a few potential points of light. First, the hideous cavalcade of horrors that was the presidential campaign challenged the narrative of a heroic FBI among partisans of both parties. Few indeed in Washington should think it reasonable to reward Jim Comey with more ability to spy on our communications, after this. Second, blue states continued to make limited progress against the drug war, by passing initiatives legalizing recreational use of marijuana. Third, the campaign made the right wing view Julian Assange and Wikileaks with favor, making it possible that the new administration will treat them with a less heavy hand. Last, Trump’s voter base are likely to have little patience with the kind of DC corruption that swirls around the national security state.

Each of Restore The Fourth’s chapters, and every surveillance activist, must gird up to fight passionately in the months ahead. There will be more surveillance. There will be suspicionless searches, seizures, arrests and deportations of Trump’s least favored groups: Muslims, immigrants, and people of color. We must harness the outrage of ordinary people across the country to retake our rights. Neither your religion, nor your beliefs of any kind, nor your race, make the State your master, or give it the right to pry at will into your affairs. No matter what retaliation will result, we will hold true to that vision, and work for better days ahead.

Please, give today to help us Restore The Fourth.

After a preview on Radio Statler at the HOPE XI Conference this summer, Restore the Fourth launched their new podcast, “Privacy Patriots“. Hosts Fongaboo and Chuck Ritter discuss political and social policy issues regarding privacy and the 4th Amendment in the digital age.

img_20161029_171614

Privacy Patriots is available on most major podcast directories as well as RSS feeds for both MP3 and OGG formats.

By Danielle Kerem

og-yahoosurveillance

In a letter to Director of National Intelligence James Clapper, Restore the Fourth and a coalition of civil society organizations have called on the government to clarify the legal basis for a classified Foreign Intelligence Surveillance Act (FISA) court order that allegedly compelled Yahoo to scan hundreds of millions of user email accounts for a digital signature associated with a foreign power.

According to the initial Reuters report, Yahoo “secretly built a custom software program to search all of its customers’ incoming emails for specific information provided by U.S. intelligence officials.”  According to some surveillance experts, Yahoo’s program may be unprecedented — representing the “first known case of a US internet company agreeing to a spy agency’s demand by searching all arriving messages, as opposed to examining stored messages or scanning a small number of accounts in real time.” In response to these disturbing revelations, Restore the Fourth has demanded the following from the Director of National Intelligence:

  • Honor the pledge your office made to “provide timely transparency on matters of public interest” by disclosing publicly the interpretation of law and of the Fourth Amendment that was relied upon to justify this surveillance;
  • Release as quickly as possible the FISA Court opinion and order that compelled the surveillance to occur, as is required in the USA FREEDOM Act and as is consistent with the ODNI Principles of Intelligence Transparency Implementation Plan;
  • Disclose whether the reported practice involved the scanning of email content;
  • Disclose the types of selectors that the government believes are permissible under the authority it used;
  • Provide any legal interpretations of FISA that reflect the government’s view of the scope of technical assistance it can compel providers to afford it;
  • Indicate the total number of times such an order has been issued to a provider compelling a scan of all incoming email (or a search of comparable scope), as well as the year in which such a surveillance order was first issued.

The news of Yahoo’s bulk scan of customer emails is only the latest example of Silicon Valley’s troublesome enabling of the American intelligence community’s surveillance and collection methods – revealing the duplicity of Yahoo’s “Users First” approach and provoking serious questions regarding the sincerity of providers’ commitment to protecting digital security and client data.

 

By Ed Quiggle, Jr.

screen-shot-2016-10-24-at-4-21-41-pmOn Tuesday, November 8th the 2016 General Election will be held, and all 18 Pennsylvania seats in the US House of Representatives will be up for election, as well as one of Pennsylvania’s two seats in the US Senate (Senator Pat Toomey’s seat). Restore the Fourth has created a website called DecideTheFuture.org to rate our politicians’ records on important internet freedom and privacy legislation.

While most of Pennsylvania’s delegation to Congress has leaned towards restricting internet freedom, eroding the 4th amendment and privacy protections, and increasing illegal global mass surveillance, there are some who are on what we are calling “Team Internet,” fighting to protect internet freedom and your privacy rights. The members of Pennsylvania’s delegation to Congress who are part of Team Internet are Rep. Scott Perry (R-4th), Rep. Chaka Fattah (D-2nd), Matthew Cartwright (D-17th), Rep. Mike Doyle (D-14th), and Rep. Michael Fitzpatrick (R-8th). All received a score of A+ on DecideTheFuture’s scorecard, and Rep. Keith Rothfus (R-12th) scored a B-.

Meanwhile, both of Pennsylvania’s US Senators have a horrible record when it comes to opposing mass surveillance and defending internet freedom, Democratic Senator Bob Casey got a D+, and Republican Senator Pat Toomey, who is facing re-election this year, scored an F. These Senators join the rest of Pennsylvania’s delegation to Congress who are on what we refer to as “Team NSA.” Rep. Lou Barletta (R-11th), Rep. Tom Marino (R-10th), Rep. Charles Dent (R-15th), Rep. Mike Kelly (R-3rd), Rep. Patrick Meehan (R-7th), Rep. Tim Murphy (R-18th), and Rep. Joseph Pitts (R-16th) all received an F. They are joined by Rep. Ryan Costello (R-6th), Rep, Bill Shuster (R-9th) who both received a grade of D, and Rep. Brendan Boyle (D-13th), and Rep. Bob Brady (D-1st) who both received a grade of D+. Rep. Glenn Thompson’s (R-5th) record is unclear.

Of particular importance to those of us in the Susquehanna Valley are the races for the 10th District and the 11th District. In the 11th District, incumbent Republican, and Team NSA member, Rep. Lou Barletta faces Democratic candidate Mike Marsicano. Marsicano said that, “With respect to NSA policy as it applies to the 4th Amendment, [I’m] against any attempt to censor mass phone or Internet traffic. I oppose any attempt to weaken the encryption or [to create] backdoor standards of our tech companies,” when asked for his position on NSA mass surveillance and attempts by Congress to weaken encryption standards and to force companies to create backdoors in their software.

In the 10th District, Team NSA member, incumbent Republican Rep. Tom Marino faces Democratic challenger Mike Molosevich. At the time of publication, we do not have any information on Molosevich’s position on privacy and internet freedom issues, but should we obtain this information, this article will be updated to include his positions.

There are only three congressional races in Pennsylvania where there will be no incumbent running for re-election. In the 8th District, one Team Internet member, Rep. Michael Fitzpatrick, who scored an A+ on DecideTheFuture’s scorecard, is not seeking re-election. Rep. Fitzpatrick’s brother, Brian Fitzpatrick, a former FBI agent, is seeking the seat as the Republican candidate, and faces Democratic candidate, and current PA State Representative, Steve Santarsiero. Brian Fitzpatrick’s campaign web site does not include his positions on privacy rights and internet freedom, and likewise, Santasiero’s campaign web site does not include his positions on privacy rights and internet freedom. As a State Representative, Santasiero is not a co-sponsor of HB 2046 or HB 409. HB 2046 is a bill that would require law enforcement agencies to get warrants before using stingrays, dirtboxes, and other cell site simulators. HB 409 is a bill that requires law enforcement agencies to request and receive authorization from a Superior Court judge before being able to use a drone.

In the 2nd District, a Team Internet member who received an A+, Rep. Chaka Fattah, lost in the Democratic primaries in April to State Representative Dwight Evans. Evans faces Republican candidate James Jones for Fattah’s seat, in the General Election. As a State Representative, Evans did not support HB 2046 or HB 409. Neither Evans nor Jones list their positions on privacy rights and internet freedom on their respective campaign web sites.

In the 16th District, one Team NSA member, Rep. Joe Pitts, will not be seeking re-election, and those running to replace Rep. Pitts include Libertarian candidate Shawn Patrick House, Republican candidate, and current PA State Senator, Lloyd Smucker, and Democratic candidate Christina Hartman. Libertarian candidate Shawn Patrick House said, “My campaign is rooted in using the US Constitution to bind once again an overreaching Federal bureaucracy that has continued to spy and collect personal information from honest law abiding Citizens in violation of our 4th Amendment rights to be secure in our homes, persons and property. I oppose stop & frisk, would work to exonerate & protect whistleblowers like Edward Snowden and others. Repeal the PATRIOT Act, NDAA, and shut down the TSA,” when asked for his position on privacy rights and internet freedom. Republican candidate, State Sen. Lloyd Smucker, does not address privacy and internet freedom issues on his web site and also was not a co-sponsor of State Sen. Mike Folmer’s 2 year State and Local Government Drone Moratorium bill. Democratic candidate Christina Hartman also did not include her position on privacy rights and internet freedom.

Included below is a link to find out who the candidates are that are running in your area. There are so many running that I did not have time to contact every candidate running and ask their campaign where the candidate stands on internet freedom, mass surveillance, the 4th amendment, and privacy rights, but I urge you to do that for the candidates running in your district.

To find out which congressional district you live in using your zip code, go to: http://www.house.gov/htbin/findrep

For more information on the races and the candidates running, go to: https://ballotpedia.org/United_States_House_of_Representatives_elections_in_Pennsylvania,_2016

For more information on how the candidates were scored and their votes on key internet freedom and privacy legislation, go to: https://www.decidethefuture.org/

next posts >>