Category: News

BLOCK S.139 IN THE SENATE!

 

Let your senator know that nothing less than real NSA surveillance reform will do.

Perhaps you’ve been following the continuing debate in Congress on NSA surveillance, and the expiration of Section 702 of the FISA Amendments Act that makes the dragnet possible. If so, then you likely heard that Thursday the House voted down Rep. Amash’s amendment, the USA RIGHTS Act, that would have given us real mass surveillance reform. You may also know that they approved a bill, S.139, which extends Section 702 for 6 more years.

Here’s how your representatives voted on:

We still have a chance for meaningful surveillance reform this coming Tuesday when the Senate takes up S. 139. We need 41 senators to come to the aid of the Constitution by voting no on cloture for S. 139. 27 Senators voted yesterday against the Senate considering S. 139 at all, so we only need 14 more.

If S. 139 were to pass, that would not only mean six more years of the NSA spying on American citizens, but also an expansion of ‘about collection’ abilities by law enforcement.

A no vote for cloture on S. 139 will stop it from even being considered, and open the door to considering real reform. We’re urging everyone to contact their senator’s office – but especially if you are a constituent of one of the pivotal senators below.

Find Your Senator

After much Congressional debate to expand or reform NSA surveillance late last year failed to deliver a conclusion before the sunset of Section 702 of the FISA Amendments Act, it was temporarily extended to January 19th as part of a continuing resolution. to On January 5, the Rules Committee for the House of Representatives introduced S. 139, the first proposed bill since that sunset and extension.

As-is, this bill would not reform NSA surveillance programs to be in line with the Constitution. In particular, it lacks a strong warrant requirement. As such, Restore the Fourth is not supporting this bill. Currently, we are asking people to contact their representatives and urge them to support the one amendment being allowed to S. 139, which would replace it with Rep. Justin Amash‘s excellent USA Rights Act. This would:

  • End backdoor searches and require warrants
  • Close a loophole where law enforcement could engage in ‘reverse targeting’ such that they ostensibly choose a foreign target when their true interest is a US citizen that target is communicating with
  • Codify the ban on ‘about collection’
  • Restore the Privacy and Civil Liberties Oversight Board’s authority to report on foreign surveillance programs

“The USA RIGHTS Act is the best chance for real reform in a decade. Congress should grab this chance to restore our lost liberties with both hands.” -Alex Marthews, National Chair, Restore the Fourth

 

CLICK HERE TO GET CONNECTED TO YOUR CONGRESSPERSON AND SENATORS TODAY!

Sign the petition at dontlettrumpspyonus.com!

 

Section 702 Lets Spy Agencies Snoop on Americans – Without a Warrant.

In an end run around the Constitution, spy agencies have warped Section 702 of the FISA Amendments Act into a way to unconstitutionally snoop on Americans.

The law was intended to allow intelligence agencies to monitor communications of foreign individuals outside the United States. But spy agencies like the NSA have claimed this authority allows them to scan through and collect the emails and phone calls of innocent Americans. Then, the government routinely does “backdoor searches” of this information, where they may look up information about U.S. persons, even for reasons completely unrelated to intelligence gathering.

It’s the same law the NSA claims justified the scandalous programs uncovered by Edward Snowden, like the PRISM program, which forces tech companies to turn over data on their servers, and Upstream collection, which automatically searches all internet traffic that crosses tapped lines connecting the U.S. with the rest of the world.

Flying in the face of the Fourth Amendment, the government searches this information specifically for Americans at least tens of thousands of times a year without a warrant, without evidence of a crime, and without independent oversight.

The so-called “USA Liberty Act” (H.R. 3989), which was recently introduced in the House, should be significantly improved to match the forthcoming strong surveillance reform being proposed by Senators Wyden and Paul. We’re disappointed that strong reformers in the House, such as Rep. John Conyers and Rep. Jerrold Nadler, have allowed their good name to be used to give the impression that the “USA Liberty Act” is anywhere near what is needed. Here’s why it falls so far short:

H.R.3989 doesn’t stop backdoor searches, which is when the government searches through the hundreds of millions of communications it collects yearly for information on Americans and people on U.S. soil – all without a warrant. Instead, the bill okays accessing and sharing this information for foreign intelligence purposes, a loophole big enough to drive a truck through.

It fails to permanently end “about” collection, an illegal practice the NSA says they’ve stopped that allows for warrantless spying on Americans’ communications that merely mention an intelligence target. Collections should be limited to communications that are “to” or “from” a target.

It doesn’t prevent the government from secretly using surveillance information in court against defendants. Despite tens of thousands of searches by the government of Section 702 data, only a handful of defendants have ever received notice of it – and only after the Department of Justice was caught misleading the Supreme Court about its practices.

It doesn’t stop Section 702 information from being used in investigations and prosecutions that have nothing to do with national security, because the bill doesn’t place any meaningful limits on when and how data collected under Section 702 can be shared with other agencies or used in court.

It gives the NSA too many free passes. The bill adds some transparency measures but doesn’t enforce them, giving the NSA leeway to ignore transparency reports to Congress, and only a small amount of information would trickle out to the public. And there’s no independent oversight into how President Trump and Attorney General Sessions interpret the law.

 

Spying Powers Are Already Being Abused. Under Trump Things Could Get Far Worse

Even before an authoritarian like Trump came to power, the spying powers on the books were consistently abused. The government has shown a persistent inability to follow rules that are supposed to protect Americans, as chronicled in a 2017 report by Demand Progress. Judges on the FISA Court have called the violations “a very serious Fourth Amendment issue” and complained of “an institutional ‘lack of candor’” from the spy agencies.

Surveillance powers are still being turned against activists and people of color. Muslim student associations on college campuses are infiltrated and disrupted; protesters against pipelines at Standing Rock and elsewhere are targets; and Trump’s FBI just this month was revealed to have created a new designation of “black identity extremists” to target the Black Lives Matter movement. With Trump’s clear authoritarian impulses and tendency to target vulnerable populations, Congress extending these spying powers to Trump would be catastrophic.

 

Sen. Ron Wyden and Sen. Rand Paul Get It Right with the USA RIGHTS Act

By comparison, the USA RIGHTS Act is expected to end backdoor searches, permanently ban “about” collection, and provides notice when intelligence information is used in criminal proceedings. It also is expected to contain a number of additional important provisions, including strengthening transparency around FISA court opinions, preventing solely domestic surveillance under Section 702, and much more.

 

SB21, a California state ordinance that will mandate extensive oversight of police surveillance technology, is just two votes from being penned into law.

Restore the Fourth is urging all Californians, on behalf of Oakland Privacy, to contact state representatives by Friday to urge them to bring the bill out of suspense for Gov. Brown to sign.

You can contact the governor and your state representative here. But more importantly, we urge you to reach out to the following representatives by phone or on Twitter – especially ones marked with an asterisk(*).

PLEASE CALL OR TWEET and tell them to vote FOR SB 21.</span?

*Lorena Gonzalez-Fletcher (chair) – Tel: (916) 319-2080

Frank Bigelow (vice chair) – Tel: (916) 319-2005

*Richard Bloom – Tel: (916) 319-2050

*Raul Bocanegra – Tel: (916) 319-2039

*Rob Bonta – Tel: (916) 319-2018

William Brough – Tel: (916) 319-2073

Ian Calderon – Tel: (916) 319-2057

Ed Chau – Tel: (916) 319-2049

*Susan Talamantes Eggman – Tel: (916) 319-2013

Vince Fong – Tel: (916) 319-2034

*Laura Friedman – Tel: (916) 319-2043

James Gallagher – Tel: (916) 319-2003

*Eduardo Garcia -Tel: (916) 319-2056

*Adam Gray – Tel: (916) 319-2021

Reginald Jones-Sawyer  – Tel: (916) 319-2059

Jay Olbernolte – Tel: (916) 319-2033

Eloise Gomez Reyes – Tel: (916) 319-2047

(Tweets to cut and paste):

Please release #SB21 from suspense to end secret mass police #surveillance in CA @LorenaAD80 @JonesSawyer59 @AsmRichardBloom @AsmBocanegra

Please release #SB21 from suspense to end secret mass police #surveillance in CA @RobBonta @IanCalderon @AsmEdChau @AsmSusanEggman 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @AsmEGarciaAD56 @AdamGrayCA @reyes4assembly 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @laurafriedman43 @FrankBigelowCA @vfong @J_GallagherAD3 

Please release #SB21 from suspense to end secret mass police #surveillance in CA @JayObernolte @BillBroughCA 

Tuesday, August 8th, 2017 – Restore the Fourth has filed an amicus curiae in the case of Timothy Ivory Carpenter v. United States of America. In this case, cell-site location information (CSLI) was obtained by subpoena from a cellphone carrier pertaining to the suspect’s cellphone.

In submitting this brief, we seek to urge the court on the following points:

  • From the nature of CSLI, it can be derived that privacy is relational: That is, that even when people disclose their information to third parties, that should not mean that they do not have a reasonable expectation of privacy.
  • CSLI will become more revealing over time: This is due to the increasing density of tower locations, and the increased power of computers to algorithmically parse a given set of information on people’s locations to predict where they will be in the future.
  • Police use of CSLI comes with a high risk of abuse: Such as, usage for LOVEINT (ie. officials with access to government surveillance and data collections utilizing it to spy on lovers, exes, etc.), police concealment of stingray use, and precedents for CLSI used to harass political dissidents abroad.

For these reasons, we urge that the Court should adopt a warrant standard for governmental searches and seizures of CSLI. We hope that the Court will see Carpenter v. USA as an opportunity to make a much-needed reexamination of the ‘third-party doctrine.’

Restore the Fourth would like to thank our counsel, Mahesha Subbaraman, of Subbaraman PLLC, for contributing this brief.

 

Please contact:

Alex Marthews

National Chair

rt4chair@protonmail.com

(781) 258-2936

UPDATE:  (5/31/17) SB21 passed the California State Senate 21-15, and now will move on to the Assembly.

SB 21 was filed in December by state Sen. Jerry Hill (D-San Mateo), proposing that all new law enforcement surveillance equipment to be first approved by local government. The approval process would require agencies to submit a Surveillance Use Policy at a meeting open to the public. They would have to specify the type of technology to be use, data to be collected, who would have data access, storage duration, and the steps taken to ensure security and privacy. The bill had initially been approved by the Judiciary Committee.

Thanks to the input of privacy advocate groups, including ACLU, EFF, Oakland Privacy and Restore the Fourth, several amendments have since been added:

  • Separate use policies for each kind of equipment
  • Affirmative legislative approval required for use policies and impact reports or use ceases
  • Ongoing usage reporting no less than every two years
  • Amendments required due to requesting funds for acquiring, using, or accessing information from any new technology
  • Private right of action for those harmed by violation of the policy
  • Limitations on exigent use
  • Inclusion of district attorneys

The bill, in its latest incarnation, has now passed through the Budget Committee (aka. Appropriations), and can now move on to the State Senate and Assembly.

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.

bn-py738_0923de_j_20160923160607Yahoo compromised the security and privacy of hundreds of millions of users and all the people they communicate with by installing a secret software program that searched all incoming emails at the request of US intelligence officials.

Sign the pledge to dump Yahoo now and learn how you can send a clear message to email providers that this kind of secret surveillance won’t go unanswered.

 

Restore the Fourth had a strong showing from around the country at this year’s HOPE XI conference. Brian Hofer and aestetix of RT4 San Francisco hosted the talk ‘Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security‘ regarding their fight against a DHS Domain Awareness Center in Oakland, CA. RT4 Chairman Alex Marthews spoke on the chilling effects of government surveillance on citizens’ online activity in his talk ‘Surveillance Gives Me Chills‘. RT4 ally and ACLU lawyer Matt Cagle appeared on panel for ‘Only You Can Stop Police Surveillance‘. And RT4 launched ‘Episode Zero’ of the forthcoming RT4 podcast ‘Privacy Patriots‘ on Radio Statler, with host Fongaboo, Zaki Manian and Alex Marthews.

 

Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security

Brian Hofer & aestetix, RT SF

 

Surveillance Gives Me Chills

Alex Marthews, RT4 National Chair

 

Only You Can Stop Police Surveillance

Matt Cagle, Mariko Hirose, Jared Friend

 

Archive is forthcoming at http://radio.hope.net/archive.html

The Fourth Amendment Applies More Broadly than the Government is Making Out

mexican-american_border_at_nogales-copy

By Danielle Kerem

Restore the Fourth filed an amicus brief today at the United States Court of Appeals for the Ninth Circuit. The case, Araceli Rodriguez v. Lonnie Swartz, concerns the shooting death of 16-year-old Jose Antonio Elena Rodriguez and raises critical Fourth Amendment questions with potentially significant consequences for American law enforcement conduct both abroad and at home.

On October 10, 2012, Jose Antonio was gunned down by United States Border Patrol agent Lonnie Swartz while walking home following a game of basketball in his Nogales, Mexico neighborhood. As he walked along a public street parallel to the U.S.-Mexico border, the teenager was shot in the back approximately 10 times by agent Swartz, who fired multiple rounds through the border fence from his position on American soil. Jose Antonio bled to death a short time later.

In July 2014, Jose Antonio’s mother – Araceli Rodriguez – filed a civil lawsuit in Arizona against the agent responsible for his death, alleging that Swartz had violated her son’s Fourth Amendment rights by using excessive and unjustified force. In response, Swartz’s legal team moved for dismissal of the case on the grounds that Jose Antonio was a Mexican citizen killed on Mexican territory and consequently not protected by the U.S. Constitution.

The court, however, partially denied the defendant’s motion, instead affirming that “under the facts alleged in this case, the Mexican national may avail himself to the protections of the Fourth Amendment and that the agent may not assert qualified immunity.” In July 2015, Swartz appealed the district court’s decision. In February 2016, the United States filed an amicus brief objecting to the district court’s finding that Jose Antonio benefited from Fourth Amendment protections and supporting reversal of the ruling. The Department of Justice contended that the “Fourth Amendment does not extend extraterritorially to aliens without significant voluntary connections to the United States,” grounding this interpretation in the 1990 United States v. Verdugo-Urquidez Supreme Court decision.

In today’s amicus brief, Restore the Fourth – through our counsel at Subbaraman PLLC and the Harvard Law School Cyberlaw Clinic – advances two core arguments to address the Government’s misrepresentation of Fourth Amendment protections as well as misreading of the relevant case law. First, we contend that the Fourth Amendment, at a minimum, requires government searches and seizures of anyone to be reasonable. Second, we insist that the “substantial and voluntary connections” test articulated in United States v. Verdugo-Urquidez determines what constitutes a reasonable search or seizure only when this test can be administered:

Restore the Fourth files this brief in order to address the United States’s misreading of Verdugo-Urquidez. The plurality did not erase the Fourth Amendment’s core demand that all government searches and seizures be “reasonable”—even extraterritorial searches and seizures of aliens. See Boumediene v. Bush, 553 U.S. 723 (2008). Rather, the plurality merely established that the Fourth Amendment affords the government reasonable latitude when it is capable of reviewing an alien’s connections with the United States before searching or seizing him. Here, by contrast, Agent Swartz killed J.A. without any such review. His actions were thus patently unreasonable, even if one were to conclude that J.A. lacked substantial voluntary connections to the United States.

According to Alex Marthews, National Chair of Restore The Fourth, “since the misinterpreted Verdugo-Urquidez decision in 1990, we have built new and oppressive structures of immigration control, foreign policy and mass surveillance on the basis of being able to ignore some people’s unalienable rights, even in times of peace. The Fourth Amendment cannot be twisted to support this. Jose Antonio’s family, and every family affected by U.S. state power, deserve better.”

Amicus Brief:

http://restorethe4th.com/wp-content/uploads/2016/05/Restore-the-Fourth-Rodriguez-v-Swartz-1.pdf